Petition for Writ of Certiorari — Don William Davis, Petitioner v. Arkansas

SUPREME COURT OF ARKANSAS

Nos. CR-92-1385 & CR-00-528

Opinion Delivered: March 1, 2018

DON WILLIAM DAVIS

V.

STATE OF ARKANSAS

APPELLANT APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[NO. 04CR-91-80-1]

HONORABLE ROBIN F. GREEN,

APPELLEE JUDGE

MOTION TO RECALL THE

MANDATE DENIED; STAY OF

EXECUTION LIFTED.

SHAWN A. WOMACK, Associate Justice

Don William Davis asks this court to recall its mandate in his direct appeal affirming

his conviction for capital murder and death sentence. Davis v. State, 314 Ark. 257, 260, 863

S.W.2d 259, 260 (1993), cert. denied, Davis v. Arkansas, 511 U.S. 1026 (1994). On April 12,

2017, Davis filed a motion to recall the mandate and stay his execution. This Court granted

Davis’s motion to stay his execution and took his motion to recall the mandate as a case. In

his motion, he argues that he did not receive the minimum due-process requirements

prescribed in Ake v. Oklahoma, 470 U.S. 68 (1985) because we have incorrectly interpreted

and applied Ake, and because of our misapplication, he did not have access to an

independent mental health expert to assist in his defense. We conclude that he has failed to

demonstrate a breakdown in the appellate process to justify the recall of the direct-appeal

mandate. We therefore deny his motion and lift the stay of his execution.

I. Factual and Procedural Background

APP. A, Pg. 1a

Davis was charged and convicted of the capital murder of Jane Daniel, theft of

property, and burglary. Prior to his trial, the Benton County Circuit Court ordered Davis

to be examined by Dr. Jenkins at Ozark Guidance to determine whether “there are

reasonable grounds to believe the defendant to be presently insane or that he was insane at

the [time] of the alleged offenses.” Jenkins conducted the examination and concluded that

there was no evidence that he was psychotic at the time of the interview or at the time of

the offense. His letter did state that he had a diagnosis of “Attention-deficit Hyperactivity

Disorder residual” (“ADHD”) which could have contributed to the crime but did not

constitute a psychosis.

Davis filed a motion for an additional psychiatric evaluation based on Jenkins’s

opinion that his hyperactivity disorder could have contributed to the crime and that he was

entitled to an examination by the state hospital to explore mitigating evidence. The State

joined his motion, and the circuit court entered an order committing him to observation at

the Arkansas State Hospital. The physicians at the state hospital returned their five-page

report and concluded that Davis was competent to stand trial and that he did not appear to

“suffer from a mental disease . . . which would preclude criminal responsibility.” The report

was based on evaluations performed by Dr. John Anderson and Dr. Wendell Hall, as well

as interviews performed by Mrs. Robertson with Davis’s uncle and father. The examiners

diagnosed him with alcohol abuse, psychoactive substance abuse, and “Antisocial Personality

Disorder.” The report also detailed Davis’ history of learning disabilities, hyperactivity,

troubled family history, and previous stretches of incarceration.

2

APP. A, Pg. 2a

After the report was issued, the circuit court conducted a pre-trial hearing and

concluded that Davis was competent to proceed to trial. During the hearing, Davis’s

attorney made an oral motion to hire an independent psychiatrist on the basis that there is

no doctor-patient confidentiality with the state psychiatrists and to explore potentially

mitigating evidence. The circuit court denied the motion.

Thereafter, Davis made another written request to obtain funds to employ an

independent expert psychiatrist based on Ake;1 he later amended his motion to request

$2,000 to employ Dr. Marr, a clinical psychologist located in Fayetteville, Arkansas. The

court held a hearing on Davis’s written motions to hire an independent psychiatric expert.

The court noted that after reviewing the file there was no finding in the state hospital report

regarding “whether or not Mr. Davis was suffering from any mental or emotional

disturbance, or under the influence of any kind of mental or emotional disturbance at the

time” despite the amended order requiring the state psychiatrists to make findings regarding

mitigation. The court held the matter under advisement until the defense had access to the

medical records and the opportunity to interview the staff because the “psychiatrists [might]

. . . support those things hinted at in the report from Jenkins, or might provide the necessary

mitigation that the Defense might desire.”

Davis was initially represented by Mr. Keenan from the public defender’s office.

However, at a hearing on September 6th, the court revealed that Mr. Keenan had resigned

from the public defender’s office and that counsel had to be appointed to continue Davis’s

representation. The court determined that Mr. Tim Morris would be appointed as lead

counsel and the public defender’s office would assist in his representation. The court entered

a written order on September 16th noting the change in representation. Although there is

no order in the record it appears that Mr. Jack Martin from the public defender’s office

served as co-counsel for the duration of the case.

1

3

APP. A, Pg. 3a

During the sentencing phase of the trial, Davis called Jenkins to testify. He testified

that he diagnosed Davis with ADHD and recounted his substance-abuse history. Jenkins

also testified regarding Davis’s troubled family history, that he was raised by his grandmother

after his parents deserted him and his sister. However, Jenkins also found that the report

from the Arkansas State Hospital reflected his findings. Jenkins specifically opined that Davis

was competent to stand trial, was not out of touch with reality, could distinguish between

right and wrong, and could appreciate the criminality of his conduct. The jury sentenced

Davis to death, and we affirmed on direct appeal. Davis v. State, 314 Ark. 257, 863 S.W.2d

259 (1993).

After Davis’s trial and in his Rule 37 postconviction proceeding, Jack Martin testified

that he was hired by the Benton County Public Defender’s Office in 1990 and served as cocounsel with Tim Morris. Martin testified that they asked several times for funds to hire an

independent counselor but never received any. He also testified that the Arkansas State

Hospital and Jenkins were not helpful in developing a specific strategy for the defense at the

sentencing phase of the trial. Tim Morris testified that after the judge made his conditional

ruling, he interviewed both doctors at the state hospital in Little Rock. The doctors were

willing to sit down and talk with him but were unwilling to discuss the mitigating factors

he was interested in talking about. He then decided to proceed with Jenkins during the

sentencing phase because he was more sympathetic to his case. We affirmed the denial of

his petition. Davis v. State, 345 Ark. 161, 168, 44 S.W.3d 726, 729 (2001).

II. Standard of Review in Motion to Recall the Mandate

4

APP. A, Pg. 4a

This court has the inherent power to recall its mandate but will exercise that power

only in the most “extraordinary circumstances” to be used as a last resort to address “grave,

unforeseen contingencies.” Ward v. State, 2015 Ark. 61, at 3, 455 S.W.3d 818, 820; Nooner

v. State, 2014 Ark. 296, at 9, 438 S.W.3d 233, 240 (citing Calderon v. Thompson, 523 U.S.

538 (1998)). To establish the extraordinary circumstances required, we have enumerated

certain factors we consider, namely: (1) the presence of a defect in the appellate process, (2)

a dismissal of proceedings in federal court because of unexhausted state-court claims, and

(3) the appeal is a death case that requires heightened scrutiny. Wertz v. State, 2016 Ark.

249, at 5, 493 S.W.3d 772, 775. A defect in the appellate process is “an error alleged to have

been made by this court during the course of its appellate review” of a death-penalty case.

Nooner, 2014 Ark. 296, at 8, 438 S.W.3d at 239. Such an error is distinguished from one

that “should have been raised to the trial court” and could not be “considered as falling

within one of the so-called Wicks . . . exceptions,” or within our independent review of

death cases pursuant to Rule 4-3 of the Arkansas Supreme Court Rules, and Rule 10 of the

Arkansas Rules of Appellate Procedure–Criminal. Id. (quoting Engram v. State, 360 Ark.

140, 148-50, 200 S.W.3d 367, 370-72 (2004)).

The factors are not necessarily to be strictly applied; rather, they serve as a guide in

determining whether to recall a mandate. Wertz, 2016 Ark. 249, at 5, 493 S.W.3d at 775.

This guide is particularly important because recalling the mandate is discretionary and

applying the factors serves as “some means of an internal check on that discretion” to ensure

against its arbitrary application. Nooner, 2014 Ark. 296, at 9, 438 S.W.3d at 240

III. Ake Requirements

5

APP. A, Pg. 5a

In Ake v. Oklahoma, the Supreme Court held that when a defendant shows that his

“sanity at the time of the offense is to be a significant factor at trial, the State must, at a

minimum, assure the defendant access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation, and presentation of the

defense.” 470 U.S. at 83. The Court specifically stated that a defendant is not constitutionally

entitled “to choose a psychiatrist of his personal liking or to receive funds to hire his own,”

but left the decision up to the individual states on how to implement the right. Id. at 83.

The Court recently revisited its holding in Ake in McWilliams v. Dunn, 137 S. Ct.

1790 (2017), where it rejected Alabama’s argument that it met the requirements of Ake

when it provided a competent psychiatrist to evaluate the defendant. Id. at 1800. The Court

explained that Ake requires more than just an evaluation but “access to a competent

psychiatrist who will [also] . . . assist in [the] evaluation, . . . preparation, and . . . presentation

of the defense.” Id. (quoting Ake, 470 U.S. at 83). The Court specifically declined to answer

whether “a State must provide an indigent defendant with a qualified mental health expert

retained specifically for the defense team, not a neutral expert available to both parties”

because Alabama did not meet the most basic requirements. McWilliams, 137 S. Ct. at 1799.

From Davis’s motion, it is clear that his request to stay his execution was premised

on the assumption that the Supreme Court would answer that question in McWilliams. See

Davis v. State, 2017 Ark. 135 (Womack, J., dissenting). Both parties in this case acknowledge

that the Court did not answer the anticipated question; therefore, Ake and this court’s

precedent still govern. Davis wrongly argues that this court has always applied a flawed

interpretation of Ake by holding that a mental examination at the state hospital is all a

6

APP. A, Pg. 6a

defendant is entitled to. He argues that we should recall the mandate because this court

applied our flawed interpretation on his direct appeal.

IV. Ake’s Application

This court has never held such. At the time of Davis’s trial, Ark. Code Ann. § 5-2305 (Supp. 1989) stated that if the defendant files notice that he intends to rely on a defense

of mental disease or the court has reason to expect that the defendant’s mental fitness will

be in question, then the court shall order a mental examination. The circuit court in this

case ordered an examination to be performed by Dr. Jenkins and an additional examination

by the psychiatrists at the state hospital. Both examinations concluded that Davis was

competent to stand trial. Our court has consistently held that the medical experts available

at the Arkansas State Hospital meet the requirements of Ake because they are not involved

in the prosecution of criminals, not that a mental examination is all that is required once a

defendant has made a preliminary showing that his mental state will be a “significant factor

at trial.” See, e.g., Creed v. State, 372 Ark. 221, 224, 273 S.W.3d 494, 497 (2008); Dirickson

v. State, 329 Ark. 572, 576, 953 S.W.2d 55, 57 (1997); Branscomb v. State, 299 Ark. 482,

486, 774 S.W.2d 426, 428 (1989). We recently upheld our interpretation of Ake in Ward v.

State and explained that the constitution does not guarantee a defendant the right to “shop”

around until he finds a psychiatrist that will declare him incompetent. Ward v. State, 2015

Ark. 61, at 14, 455 S.W.3d 818, 826 (quoting Creed, 372 Ark. at 223-24, 273 S.W.3d at

497). In short, Davis’s interpretation of our caselaw is incorrect.

Regardless of our interpretation of Ake, Davis received at least the minimum due

process required. First, it is undisputed that Davis received a mental examination under the

7

APP. A, Pg. 7a

statute. Second, while his first request for funds to hire an independent expert was denied,

his new counsel, Tim Morris, filed another motion to hire an independent counselor to

develop mitigating evidence. At the November 8 hearing on Davis’s written motion, the

circuit court held his motion under advisement because the report from the state hospital

did not contain any findings regarding how Davis’s hyperactivity issues may have affected

his judgment. The court specifically gave Davis the opportunity to interview the examiners

and return to court if the information they provided was insufficient. Both of his attorneys

testified that the state mental-health experts were not helpful in aiding his defense, and

Morris stated that he spent four to six hours interviewing each doctor from the state hospital

and it was their opinion that there was no mitigating evidence. Morris, who was lead

counsel, ultimately made the decision to proceed with Jenkins’s testimony at trial because

his testimony was more helpful than that of the state doctors. However, he admitted that

even if he had obtained funds to hire an independent psychiatrist there was no indication

that they would have reached a different result and there “wasn’t any need to go further.”

Despite both Morris’s and Martin’s testimony that the state doctors were unhelpful

and unwilling to aid them in their defense, there is no evidence that they returned to court

and asked for funds to hire their own expert. Rather, the record shows they made the

strategic decision not to move forward with their motion because no matter who they talked

to, they were not going to obtain an opinion substantially different than what they had

already received. It was at this point that they decided to present Jenkins’s testimony at trial,

and Morris even admitted that Jenkins was a helpful and willing participant at trial. Jenkins

testified extensively about Davis’s hyperactivity disorder and stated that individuals who face

8

APP. A, Pg. 8a

this disorder are substantially more likely to have substance abuse problems, psychiatric

difficulties, and future legal problems. He also testified that substance abuse leads to some

stunting of emotional or judgmental maturity and that such an individual may have difficulty

conforming his actions to abide within the law. Notably, Davis raised this same argument

in his federal habeas petition, where the Eighth Circuit Court of Appeals determined that

Jenkins’s detailed testimony met the requirements of Ake. Davis v. Norris, 423 F.3d 868, 877

(8th Cir. 2005).

In summary, Davis made the strategic decision to not pursue a partisan psychiatrist

and proceeded with Jenkins’s testimony at trial. Such a decision is not a “defect in the

appellate process” that is attributable to this court upon its review. Noel v. State, 342 Ark.

35, 41, 26 S.W.3d 123, 127 (2000) (trial strategy, even improvident strategy, is not reversible

error). While the U.S. Constitution guarantees a right to a competent psychiatrist, it does

not guarantee a psychiatrist who will reach the medical conclusions the defense team desires.

Therefore, there was no breakdown in the appellate process that would warrant recalling

the mandate. Because Davis cannot prevail on the first factor to recall the mandate, there is

no need to apply the remaining two. Nooner, 2014 Ark. 296, at 9, 438 S.W.3d at 239.

Motion to recall the mandate denied; stay of execution lifted.

KEMP, C.J., and HART, J., concur.

9

APP. A, Pg. 9a

APP. A, Pg. 10a

APP. A, Pg. 11a

APP. A, Pg. 12a

APP. A, Pg. 13a

APP. A, Pg. 14a

APP. A, Pg. 15a

APP. A, Pg. 16a

Anr.l

257

Don William DAVIS v. STATE of Arkansas

cR 92-1385

863 S.W.2d 259

Supreme Court of Arkansas

Opinion delivered October 4, 1993

[Rehearing denied November 8, 1993.]

pREsERvATIoN oF AN AppELLANT'S RIGHT To FREEEvlpsNcr

DOM FROM -DOUBLE JEOPARDY _ REVIEW OF SUFFICIENCY OF THE

Preservation of an appellant's right to

EV¡DENcE REeurRED.

-

freedom from doublejeopardy requires a review ofsufficiency ofthe

evidence prior to a review of trial errors.

7

EvlonNcE

TEST FoR DETERMININc suFFIcIENcy oF

REvIEw

- of the

The test for determining the sufficiency

evidence is whether

there is substantial evidence to support the

oN AppEAL.-

verdict; on appeal, the court reviews the evidence in the light most

favorable to the appellee and sustains the conviction if there is any

substantial evidence to support it; evidence is substantial if it is of

sufficient force and character to compel reasonable minds to reach a

conclusion and pass beyond suspicion and conjecture.

3

4.

5.

EvlpnNcr

cTRcUMSTANTTAL EVIDENcE suFFtcIENTTo susrArN A

Circumstantial evidence can be enough to sustain

a conviction as the law makes no distinction between circumstantial

coNvrcrloN.

-

and direct evidence; for circumstantial evidence to be sufficient, it

must exclude every reasonable hypothesis consistent with innocence; it is up to thejury to determine whether the evidence excludes

every hypothesis; premeditation and deliberation and intent may all

be inferred from the circumstances and an instant of premeditation

is enough to sustain a conviction.

CnlulNel LAw

MURDER DEFINED.

The Arkansas

- cAprrAL

- murder if: (l)

legislature has said

that a person commits capital

acting alone or with one ( I ) or more other persons, he commits or

attempts to commit rape, kidnapping, arson, vehicular, piracy,

burglary, or escape in the first degree, and in the course of and in

furtherance of the felony, or in immediate ñight therefrom, he or an

accomplice causes the death of any person under circumstances

manifesting extreme indifference to human life; Ark. Code Ann.

$ 5-10-l0l(a)(l) (1e87).

EvpnNcE

FLTcHT To AvoID ARREST

cAN BE CoNSTDERED As

-

-

CORROBORATION OF EV¡DENCE TENDING TO ESTABLISH GUTLT.

_

An appellant's flight to avoid arrest can bs considered as corroboration of evidence tending to establish his guilt.

6.

EvInr¡lcn

EvtDENcE oF GU¡LT ovERwHËLMrNc.

Where the

- that killed

gun, which -ballistics experts determined shot the bullet

App. B, Pg. 16a

DnvIs v. Sr¡rtr

258

Cit€ as ll4 Ark. 257 (1993)

[314

the victim, was found in the appellant's place of residence; two of his

roommates testified that they had seen him with the gun and noticed

that he ïvas very agitated; the appellant had admitted to one of his

roommates that someone had died during the course of a burglary;

property taken from two homes was seen in the appellant's

possession by his roommates and various pawnbrokers, in and out of

state; the gun used to kill the victim was identiñed as having been

stolen from another home and was left by appellant in his former

residence; and the appellant fled the scene and went out of state

after the murder, the evidence implicating the appellant was

overwhelming.

7. W¡rxrss¡s

SITUATIoNS wITH No

EMpLoyMENT oF ExpERTs

- To BE ovERcoME. In situations

pREsuMprIoN

involving experts,

where there is no presumption to-overcome, the supreme court has

not employed the significant factor requirement, instead, it has

provided examples of insufficient grounds for obtaining an expert

but has not, thus far, specified what would constitute an adequate

basis.

8. MortoNs MorIoN FoR BALLISTICS EXPERT DENIED - DENIÀL

pRoprn. - The trial court did not err in denying appellant's motion

ballistics expert where the defendant named the

for an additional

expert but did not support his contention by showing an ascertainable need either in his motion or at the hearing on the motion; there

was no error in the trial court's decision to deny the request for a

ballistics expert.

9. CousrlrurroNAl LAw DEATH eUALIFIED JURIES REpEATEDLY

The supreme court has on

FouND ro BE coNSTITUTIoNAL.

- that death-qualified juries

numerous occasions rejected the notion

are unconstitutional; the United States Supreme Court has also

rejected this argument, holding that death-qualified juries are

constitutional.

10. WtrNrssEs

DENIAL oF MorIoN To HIRE A socIoLocIST EXPERT

WTTNESS

-DENIAL PROPER, APPELLANT'S ARGUMENT MERITLESS.

argument that the trial court erred in denying

The appellant's

the employ of a sociologist to conduct a study to determine whether

death-qualified juries are constitutional on the premise that the

United States Supreme Court reached its decision that deathqualified juries are constitutional because the sociological studies

with which it was presented were deficient was meritless where a

previous Supreme Court case clearly enumerated the fifteen studies

presented, pointed out the problems with each study, and then

determined that even if the studies had not been deficient, deathqualified juries would still be deemed constitutional; the conclusion

could not be made from the appellant's argument that his proposed

-

App. B, Pg. 17a

Anr.l

Devrs v. Sr¡,rn

259

Cite as 314 Ark. 257 (1993)

sociological study would have unearthed a new result.

No

MorroN FoR psycH¡ATR¡c EXAMINATToN

- to

- sucH A MorIoN. It is not error for a trial court

ERRoR To DENY

- for a psychiatric examination

refuse to grant an appellant's motion

by a private psychiatrist at state expense as the court has previously

stated that the statutorily provided review by a state hospital is

sufficient,

11. WlrNrssES

12. WrrNEssES

DENIED

MorroN FoR psycHIATRIc ExAMINAT¡oN pRopERLy

-TWO PREVIOUS EVALUATIONS ALREADY EXTSTED.

- appellant asked the court for funds to employ -an

Vy'here the

independent psychiatric examination even though he had already

received two evaluations, both of which had been approved by the

court, the trial court did not err in refusing to approve funding for

yet another psychiatric evaluation.

TRIAL JUDcE's

ovER

13. Tnlrl

cLosINc ARcUMENTS

- The trial judge'scoNTRoL

control of reARcuMENTs

DISCRETIoNARv.

- is discretionary and will not be

marks during closing arguments

reversed in the absence of an abuse of discretion.

Counsel

14. Tnn¡cLosINc ARcUMENTS

LEEwAy pERMITTED.

- closing

should -be allowed some leeway -with respect to opening and

remarks and the trial court has wide latitude of discretion in

controlling the arguments of counsel, and its ruling in that regard

will not be overturned in the absence of abuse; additionally,

improper statements by a prosecutor in his opening argument may

be cured by an instruction to thejury that remarks ofcounsel are not

evidence and, unless supported by evidence, should be disregarded.

No

15. Tnl¿,1

cI.osrNc REMARKs coNcERNrNc rHE MURDER

- DISCRETIoN FOUND. Where the prosecutor's remarks

ABUSE oF

- of the crime were made in the

concerning the calculated nature

jurors

context of urging the

to act as a group in imposing the

sentence and, in context, did not suggest that there was evidence

from which it could be determined that the appellant would kill

again, there was no abuse of discretion by the trial court in allowing

the remarks.

pRopoRTroNAl-try

16. CirurNrl LAw

DEATH pENALTy CASE

-

-

REVIEW DETERMINED DEATH PENALTY NOT ARBITRARILY APPLIED.

Where the victim, while

the middle of the day, was

her home in

-shot execution-style in theinback

of the head with a large-caliber

weapon, numerous items were taken from her home and the facts

were similar to numerous other robbery-murders that were punished with the death penalty, the death penalty in this case was not

freakishly or arbitrarily applied; a proportionality review of all

death penalty cases is undertaken to insure that the sentence is not

imposed in a freakish, capricious, or whimsical manner.

App. B, Pg. 18a

Dlvrs v. Sr¡rE

260

Cite ås 314 Ark.257 (1993)

[314

Appeal from Benton Circuit Court; Tom Keith, Judge;

affirmed.

Tim R. Morris, for appellant.

Wínston Bryant, Att'y Gen., by: J. Brent Stondridge, Asst.

Att'y Gen., for appellee

J¡cr Holr, Jn., Chief Justice. The appellant, Don William

Davis, was charged and convicted of the capital murder of Jane

Daniel, burglary and theft of property. He was sentenced to death

by lethal injection on the capital murder charge and given two

forty-year sentences and two $15,000 fines on the burglary and

theft of property charges. On appeal, Davis assigns to us the

following issues for consideration: sufficiency of the evidence;

whether the trial court erred in not granting funds for an

independent ballistics expert, sociologist, and psychiatric expert;

and whether the trial court erred in not grariting a mistrial or an

admonishment to the jury when the prosecutor made allegedly

prejudicial comments in his closing argument. We affirm the trial

court.

The facts before us are these: Sharon Haley, who with her

husband Mike were also victims of a burglary and neighbors of

the murder victim, testified that at about 4: l5 p.m. on October 12,

1990, she returned home and found that her screen door was

taped open and the wooden door between the garage and the

kitchen standing open. When she entered the house, she noticed

that a hand gun that had previously been on the bed table was

gone and that a console television was pulled away from the wall

and the wires disconnected. Fearful, she called the 911 emergency number from the garage phone and went to a neighbor's

house.

Once the police arrived, they asked her to take an inventory

of her property. She noted the following items missing:

several guns and appliances, a videocassette recorder, a

large Sharp conyection/microwave, a thirteen inch Sharp

television set, both of her jewelry boxes, an Amish quilt, an

older model Realistic brand stereo component set, her

wedding ring, antique locket, a small gold chain, a couple

of ladies watches, a Mickêy Mouse watch, diamond

earrings, a set of sapphire earrings, pearls, pearl earrings,

App. B, Pg. 19a

Anr.l

D¡v¡s v. Srnrn

261

Citc as 314 Ark. 257 (1993)

and a.couple of costume black onyx earrings; her husband's

two high school class rings and one college rings; a cluster

ring with pearls and rubies missing, a couple of silver rings

with turquoise stones and a matching silver bracelet; silver

herringbone chain; while gold ring with a pink zircon;

costume choker; tools from the garage; a crossbow; her

husband's collection of Harley-Davidson t-ihirts & leather

jacket; Yankee and Penn State t-shirts; special run bottle

of Wild Turkey liquor wrapped in a wooden box; and a

bottle of Crown Royal.

Mike Haley testified concerning the many ñrearrns and

weapons stolen from their home during the burglary. His list

included: a 410 shotgun, a .22 rifle, Marlin Model 39-A, with a

banner scope, a Ruger M-77 6 mm deer rifle, a Stevens double

barrel shotgun, a .44 magnum pistol with a scope and a

Winchester Model 50, 20 gauge shotgun. Also missing were a

crossbow and crossbow arrows as well as numeroub types of

ammunition for the ñrearms.

At about l0:00 p.m., the same day as the Haley burglary, the

Haleys' neighbor, Richard Daniel, returned home from a business trip and noticed the door of his garage into the kitchen

hallway was open. As he entered the house, he saw a rice pan and

bowl out in the kitchen, and it startled him when he noticed a Kool

cigarette butt in the rice bowl (especially since neither he nor his

wife smoked). Noting that the storeroom door was ajar, he

entered to find his wife, Jane, lying on the ffoor in a pool of blood.

She was lying with her head face down in a cardboard box

towards the wall, obviously, dead. Like Mrs. Haley, Mr. Daniel

called 9l I for help.

Police attempted to trace Mrs. Daniel's activities during the

day. An employee of the Rogers Diagnostic Clinic testified that

the victim came into the clinic around lunchtime to get a flu shot.

Mrs. Daniel's beautician, Gaye Tamon, testified that Mrs. Daniel

had a standing appointment every Friday at 2:30 p.m. and had

never skipped an appointment without calling first. On October

12, 1990, for the first time in ten years, Mrs. Daniel missed her

appointment and did not call.

About two weeks after his wife's death, Daniel and his

daughter searched the house for missing items. They found that

App. B, Pg. 20a

262

Devrs v. Sr¡rr

[314

Citc as 314 Ark. 257 (1993)

an expensive Lucien Piccard watch was gone as well as a couple of

pearl necklaces, a gold rope necklace, and a matching gold

necklace and bracelet, Also missing were a jewelry bag and a

Nikon camera.

At the time of the murder, the appellant, Don Davis, was

living with three roommates in a house in Bentonville. One of the

roommates, Renee Davis, testiñed that during the time they were

living together, Don Davis had been bringing stolen merchandise

home. On the day of the murder, the appellant had come home

sometime between 1:00 and 2:00 p.m. acting frightened, according to his roommates, telling his girlfriend and roommate, Susan

Ferguson, that "somebody got hurt." Property seen in his

possession that day included a Realistic stereo, a number of guns,

a black motorcycle jacket, a videocassette recorder, a television, a

microwave, numerous t-shirts, and tools. Later that day the

appellant allegedly admitted to Renee and Susan that "somebody

had gotten killed" but emphasized that he did not do it claiming

that he had been next door when the murder occurred. He said

that he "didn't know why he shot her, she was cooperating'"

Among the many items of property Davis had in the car was a gun

covered by a white towel. He told Renee that if she touched the

"towel it would be her death sentence."

According to Susan, Renee told appellant to get rid of the

stolen property because she did not want it in her house; Davis left

and returned about thirty minutes later explaining that he had

dumped the property in the woods in a remote area. Four days

after the murder a number of the items taken in the Haley

burglary, as well as Mrs. Daniel's house and car keys, were found

in a remote area of Benton County. Renee told her other

roommate, Dwayne, about Davis's suspicious behavior and the

stolen property. He urged her to go to the police.

Ultimately, the police. arrived at Davis's home to question

Renee, and she and the other two roommates agreed to let them

search the house. Among the many items discovered in the house

was a .44 magnum Redhawk revolver, which the State later

alleged was the murder weapon that killed Jane Daniel. Also

discovered was the Amish quilt taken from the Haley residence.

Inquiries at pawn shops in the area revealed that Davis had

pawned many items taken from both the Haley and Davis

App. B, Pg. 21a

Anr.l

D¡,vrs v. Srnr¡

263

Cite as 314 Ark. 257 (1993)

residences.

By this time, Davis had fled the state by taking a bus to Las

Vegas, Nevada and ultimately arriving in California. Witnesses

from several pawn shops in Las Vegas testified that they had

loaned the appellant money on goods he had pawned. These goods

matched the description of goods stolen from the Davis and Haley

households. Agents with the Federal Bureau of Investigation

found the appellant in Albuquerque, New Mexico, and arrested

him. While being arrested, Davis asked the agents for the

cigarettes that had been in his car; he described them as Kool

filter kings, the same brand of cigarette found at Mrs. Daniel's

house. Investigators also found Davis in possession of the black

leather jacket stolen from the Haley house. Detective Steven

Mark Russell testified that he travelled to Albuquerque to

transport Davis back to Rogers, Arkansas, and once they arrived

in Rogers, Davis specifically asked for some Kool cigarettes.

Violette Hnilica, forensic pathologist with the Little Rock

Medical Examiners Office, also testified at the trial. After

conducting an autopsy she concluded that Jane Daniel had died

from a contact wound resulting from an execution-style murder

by a large caliber weapon to the back of her head.

Jeff Beck, a latent prints examiner with the State Crime

Laboratory, testified he had tested fingerprints found on the

masking tape holding the inner garage door open at the Haley

residence and concluded that the prints belonged to Davis.

Berwin Monroe, Chief of ttrê Firearms and Tool Marks

section and an explosives analyst with the Arkansas State Crime

Lab, also testified for the prosecution. He performed tests on the

fragments of a metal jacket bullet removed from the victim and

determined that this bullet was shot from the .44 magnum

revolver discovered at Davis's place of residence. State Crime

Laboratory Firearms Examiner, Ronald Andrejack, corroborated Monroe's findings.

L Sufficiency of the Evidence

For his ñrst argument on appeal, Davis contends that the

evidence was insufficient to support his capital murder conviction.

We hold to the contrary.

App. B, Pg. 22a

264

DA,vrs v. Srlrn

Circ as 314 Ark. 257 (1993)

[3 l4

Il,2l Based on Burksv.United States,437 U.S. I (1978),

where the United States Supreme Court held that the double

jeopardy clause precludes a second trial when a conviction in a

prior trial was reversed solely for lack of evidence, we have held

that preservation of an appellant's right to freedom from double

jeopardy requires a review of sufficiency of the evidence prior to a

review of trial errors. Luckach v. State,3l0 Ark. l19, 835

S.W.2d 852 (1992): Harrís v. State,284 Ark. 247,681S.W.2d

334 (1984). The test for determining the sufficiency of the

evidence is whether there is substantial evidence to support the

verdict. Rickettsv. State,292 Ark.256,729 S.W.2d 400 (1987).

On appeal, this court reviews the evidence in the light most

favorable to the appellee and sustains the conviction if there is any

substantial evidence to support it, Abdullah v. State,301 Ark.

235,783 S.W.2d 58 (1990). Evidence is substantial if it is of

sufficient force and character to compel reasonable minds to

reach a conclusion and pass beyond suspicion and conjecture.

Hodge v. State,303 Ark. 37 5,'197 S.W.2d 432 (1990); Jones v.

State,269 Ark. 119,598 S.W.2d 748 (1980).

[3,4] Davis complains that the evidence was insufficient

because it was almost all circumstantial. However, circumstan-

tial evidence can be enough to sustain a conviction:

The law makes no distinction between circumstantial and

direct evidence. Perry v. State,27'l Ark,357,642 S.W.2d

865 (1982). For circumstantial evidence to be sufficient, it

must exclude every reasonable hypothesis consistent with

innocence. It is up to the jury, however, to determine

whether the evidence excludes every hypoth esis. Traylorv.

State,304 Ark. 174,801 S.W.2d 267 (1990). The matter

of premeditation and deliberation and intent may all be

inferred from the circumstances. An instant of premeditation is enough to sustain a conviction.

Cigainero v. Støte,3l0 Ark. 504, 838 S.W.2d 361 (1992).

Our legislature has defined capital murder as:

A person commits capital murder if: (l) Acting alone or

with one ( I ) or more other persons, he commits or attempts

to commit rape, kidnapping, arson, vehicular, piracy,

BURGLARv, or escape in the first degree, and in the course

App. B, Pg. 23a

Anr.l

Drvrs v. Srnru

26s

Cire as 314 Ark.257 (1993)

of and in furtherance of the felony, or in immediate flight

therefrom, he or an accomplice causes the death of any

person under circumstances manifesting extreme indifference to human life.

Ark. Code Ann. $ 5-10-l0t(a)(t) (lgSTxemphasis added).

Here, ihe evidence is more than sufficient to prove that Davis

murdered Jane Daniel while burglarizing her home. The gun,

which ballistics experts determined shot the bullet that killed

Mrs. Daniel, was found in Davis's place of residence. Two of his

roommates testified that they had seen him with the gun and

noticed that he was very agitated. Further, Davis's roommate,

Renee, testified that on the day Davis returned home with

property later identified as coming from the Daniel and Haley

houses, he had admitted to her that someone had died during the

course of a burglary. In fact when she tried to pick up the gun he

was carrying in a towel, he threatened, "it would be her death

sentence."

Property taken from both the Haley and Daniel homes was

seen in Davis's possession by his roommates and various pawnbrokers, in and out of state. For example, Renee Davis testified

that she had discovered a green and brown drawstring jewelry

bag containing pearls. (This was later identified as the victim's

bag and jewelry), A Kool cigarette butt was left at the crime scene

and the appellant was known to smoke this specific brand of

cigarettes. Equally telling was the fact that the gun used to kill

Jane Daniel was identified as having been stolen from the Haley

home and was left by appellant in his former residence.

[5,6] Also incriminating is the fact that Davis fled the

scene and went out of state after the murder. This cciurt has held

that an appellant's flight to avoid arrest can be considered as

corroboration of evidence tending to establish his guilt. Ferguson

v. State,298 Ark. 600, 769 S.W.2d 418 (1989). In sum the

evidence implicating Davis is overwhelming.

II. Ballistícs Expert

For his next argument, Davis submits that the trial court

erred in refusing his formal motion asking for funds to employ

Donald Nittskoff, a ballistics expert, to assist in the preparation

of his defense. He contends that it was fundarnentally unfair to be

App. B, Pg. 24a

Dnvrs v. StnrE

266

Citc as 314 Ark. 257 (1993)

[314

denied this expert's assistance because the State had to prove that

the bullet fragments and casing found at the murder scene were

shot from a stolen gun in order to prove him guilty beyond a

reasonable doubt. We disagree with Davis's assertions and that

the trial court erred

Prior to trial, Davis petitioned the trial court to furnish funds

to provide for the employment of experts in the fields of ballistics,

sociology, and psychiatry, as well as funds for an investigator to

assist in the preparation of his defense. The trial court ordered the

State to fund the employment of the investigator and denied the

requests for the funding of the various experts.

Obviously it is impossible to establish a black-letter rule for

determining whether an indigent defendant was denied a fundamental right to an effective defense because of the trial court's

refusal to grant public funds to hire an expert. In psychiatric

expert defense cases, we have.held that in order for an expert to be

appointed, the defendant must mâke a preliminary showing that

his sanity at the time of the offense is to be a significant factor at

trial. See Day v. State,306 Ark. 520, 816 S.W.2d 852 (1991);

Coulterv. State,304 Ark. 527, 804 S.W .2d 348 (1991); Pruett v.

State,287 Ark. 124,697 S.W.2d 872 (1985). This is understandable as the defendant has a presumption of sanity to overcome in

cases where sanity is an issue.

l7l

However, in other situations involving experts, where

there is no presumption to overcome, this court has not employed

the signifrcant factor requirement. Instead, we have provided

examples of insufficient grounds for obtaining an expert but have

not, thus far, specified what would constitute an adequate basis.

ces sor v. s t at e, 282 Ark. 3 30, 668 S.W.2d 525 (1984); Píckens v.

State, 279 Ark. 457, 652 S.W.2d 626 (1983); and Adams v.

State,276 Ark. 18, 631 S.Vi/.2d 828 (1982).

ln Cessor we noted that the trial court did not err in denying

appellant's rnotion for an additional ballistics expert when the

defendant did not name the ballistics expert he wished to employ

or support his contention by showing what, if anything, an

additional ballistics expert could offer on his behalf. Our holding

in Cessor suggested that, if a defendant furnished the trial court

with these specifics, his request for an expert should be granted.

App. B, Pg. 25a

Anx.l

Dn,vrs v. Srlr¡

267

Cire as 314 Ark. 257 (1993)

Here, Davis, in his motion for employment of the firearms

expert, named his expert, asked the State to expend some $4,000

in funds for his expert's employment, and explained to the court

that his expert would test and help analyze the bullet fragments

and shell casings and would help analyze, interpret, and assist

him in understanding the State's ballistic evidence for all purposes, including effective cross-examination of the State's two

ballistic experts, Berwin Monroe and Ronald Andrejack of the

State Crime Lab. Yet, Davis failed to make a showing of an

ascertainable need in his motion or at the hearing on the motion.

At the hearing, it was apparent to the trial court that counsel had

not interviewed or had any discussions with the State's experts, as

the following exchange between counsel and the court reveals:

Court. All right. Well, the Court's position in regard to

and I gather, Mr. Morris and

Mr. Martin, that you-all -have not as of yet interviewed or

had any discussion with the experts from the State Crime

Lab in regard to either one of these issues.

these two matters is that

Defense. No, sir, that's correct, your Honor.

Court. Well, at the state that this is in at this point in time

to authorize that to the Court would simply

- there simply

seems to be a financing of a fishing expedition and I deny

the motion.

t8l Davis's counsel and his investigator subsequently inter'

viewed Monroe and Andrejack, and Davis elected not to renew

his motion or to show to the court the defense's specific need for

utilization of a ballistics expert. In that light, we hold that there

was no error in the trial court's decision to deny the request for a

ballistics expert. Simply put, the request was premature. To hold

otherwise would be to grant license to defense attorneys to obtain

experts for their indigent clients without a showing of an

ascertainable need.

IIL Sociologíst Expert

As mentioned previously, prior to trial, Davis's counsel filed

a motion asking the trial court to authorize funds so that he could

employ a sociologist to conduct a study to determine whether

death-qualified juries are constitutional, but, at a hearing on this

motion, the court refused. On appeal, Davis claims that this

App. B, Pg. 26a

Dnv¡s v. Srnrr

268

Citc as 314 Ark, 25? (1993)

[3 l4

refusal was a violation of his Sixth and Fourteenth Amendment

rights under the United States Constitution.

Clearly, as Davis points out, fundamental fairness entitles

indigent defendants to "an adequate opportunity to present their

claims fairly within the adversary system." Ross v. Mofrtl,4l7

U.S. 600, 612 (1974). However, Davis wanted the funds to pay

for the sociologist to pursu€ a moot point.

f9l

This court has on numerous occasions rejected the

notion that death-qualiñed juries are unconstitutional. Híckson

v. State,3l2 Ark. 17 1,847 S.W.2d 691 (1993); Fretwellv. State,

289 Ark. 91,708 S.W.2d 630 (1986); Rectorv. State,280 Ark.

385, 659 S.W.2d 168 (1983), cert. denied 4ó6 U.S. 988 (1984).

The United States Supreme Court has also rejected this argument, holding that death-qualified juries are constitutional.

Lackhart v. McCree,476 U.S. 162 (1986).

Citing McCree for support, Davis has based his argument

that the trial court erred on the premise that the United States

Supreme Court in McCree reached its decision that deathqualifred juries are constitutional because the sociological studies

with which it was presented were deficient. The Court noted, in

this regard:

.

Having identiñed some of the more serious problems with

McCree's studies, however, we will assume for purposes of

this opinion that the studies are both methodologically

valid and adequate to establish that'death qualiñcation'in

fact produces juries somewhat more conviction prone than

non-death qualified juries. We hold, nevertheless, that the

constitution does not prohibit the states from death quali-

fying juries in capital cases.

McCree,476 U.S. at 173.

It is evident that the United States Supreme Court was not

basing its opinion on the presumption that the studies were

deficient. The court enumerated the fifteen studies presented,

pointed out the problems with each study, and then determined

that even if the studies had not been dertcient, death-qualified

juries would still be deemed constitutional.

[10] Thus, the conclusion cannot be made from Davis's

App. B, Pg. 27a

Anx.l

D¡,vrs v. Sr¡rE

269

Cite as 314 Ark. 257 (1993)

argument that his proposed sociological study would have unearthed a new result. As a result, this argument is meritless.

IV. Psychiatic Expert

Davis also claims that the trial court erred in not granting

funds for a psychiatric expert arguing that, although State

Hospital psychiatrists examined him, these examinations were

deficient because doctor/patient communications were not

privileged.

Davis received a psychiatric evaluation at state expense from

the Ozark Guidance Center. The psychiatrist there concluded

that there was a lack of psychosis but that David did have

attention-deficit hyperactivity disorder residual, which could

have contributed to the commission of the offenses.

Subsequently, Davis, joined by the State, filed a motion for

psychiatric evaluation at the Arkansas State Hospital, which was

granted. The resulting medical report revealed no psychoses but

did indicate a psychoactive substance abuse and antisocial

personality disorder.

U 1l Next, Davis asked the court for funds to employ an

independent psychiatric examiner, which the court refused to do.

Case law supports the trial court's decision. This court has held

that it is not error for the trial court to refuse to grant an

appellant's motion for a psychiatric examination by a private

psychiatrist at state expense. Love v. State,281 Ark. 379,664

S.w.Z¿ 457 (1984). Perhaps most persuasive is the recent case of

sanders v. state,308 Ark. 178, 824 S.W.2d 353 (1992):

With respect to the question of a defendant's sanity at the

time an offense was committed and competency to stand

trial, this court has held that the statutorily provided

review by a state hospital is sufficient. Coulterv. State,304

Ark.527,804 S.W.2d 34S (1991). As previously stated,

the appellant was examined by such a facility and found to

have no problems with his sanity. The appellant is in fact

arguing that he should have been allowed the "opportunity

to have a second opinion." Again, the Supreme Court did

not hold in Ake that a defendant has the constitutional

right to choose a psychiatrist of his personal liking or to

shop around to find one who will support his insanity

App. B, Pg. 28a

Dnvts v. Sretr

270

Cite as 314 Ark. 257 (1993)

[314

defense.

Sanders,308 Ark. at 183, 824 S.W.2d 353, 356.

1l2l In light of these cases, we conclude that the trial cor¡rt

did not err in refusing to approve funding of a private psychiatric

evaluation for Davis after approving two previous evaluations.

V. Allegatíon of Prosecutorial Misconduct

This final issue arises from comments that the prosecuting

attorney made to the jury during his closing arguments in the

penalty phase of the trial:

I would suggest to you that the murder, the crime that the

Defendant did in this case

his actions represent one of

civilized society's worst nightmares,

a situatioh in which in

broad light of day, in the middle of the day, in a peaceful

neighborhood here in Northwest Arkansas, with a housewife/grandmother coming home to fix her lunch, feeling

totally safe in the sanctuary of home that she instead was

faced with an armed and bold, calculating and ruthless

criminal who saw her cross the street and decided this was

a chance for some quick easy money and grabbed up his

gun and drove over there and went in specifically looking

for her. This wasn't one of those deals where they were

trying to burglarize a house and accidentally stumbled

upon somebody that's in there, or even that they came

home, which is another reason to consider the seriousness

of the burglary of Mike and Sharon [Haley]. What if

Sharon had come home? What then?

[3]

The trial judge's control of such remarks during

closing arguments is discretionary and will not be reversed in the

absence of an abuse of discretion. For example, in Wilson v,

State,295 Ark. 682,751 S.W.2d 734 (1988), the prosecutor

asked the jurors to impose the death penalty and to "tell Ron

Wilson he will never commit another murder." Wilson,295 Ark.

The trial court refused to do anything

at 690, 751 S.W.2d

and this court agreed with its decision

about the remark,^t739.

explaining that "The court's ruling. .about the remark was

discretionary, and in the absence of an abuse of discretion, will

not be reversed." Id. We found no abuse of discretion, having

determined that the request was made in the context of urging the

App. B, Pg. 29a

Anr.l

Dnvrs v. Srnrr

27t

Citc as 314 Ark. 257 (1993)

jurors to "act as a group in imposing the sentence. In context, it

did not suggest that there was evidence from which it could be

determined that Wilson would kill again." Vlilson,295 Ark. at

690,7 5l S.W. 2d at7 39.This analysis applies to the facts at hand,

for the prosecutor's remarks about Davis are similar to the

prosecutor's statements in Wílson.

[f 4, 15] Other jurisdictions have held that, in the penalty

phase of a capital murder case, both parties should be given wide

latitude in arguing the matter of punishment. State v. Feltrop,

803 S.W.2d I (Mo.banc l99l); Statev. McDonald,66l S.W.2d

497 (Mo.banc 1983). Although this court has never specifically

adopted this rule, we have held that counsel should be allowed

some leeway with respect to opening and closing remarks.

Abraham v. State,274 Ark. 506,625 S,W.2d 518 (1981). The

trial court has wide latitude of discretion in controlling the

arguments of counsel, and its ruling in that regard will not be

overturned in the absence of abuse. Cobbs v. State,292 Ark. 188,

728 S.W.2d 957:Shawv.State,27l Ark.926,611 S.rW.2d 522

(1981). We have also held that improper statements by a

prosecutor in his opening argument are cured by an instruction to

the jury that remarks of counsel are not evidence and, unless

supported by evidence, should be disregarded. Miller v, State,

309 Ark. 117,827 S.W.2d 149 (1992). Under the circumstances,

we hold that the trial court did not abuse its discretion.

[6] Lastly, we undertake a proportionality review of all

death penalty cases to insure that the sentence is not imposed in a

freakish, capricious, or whimsicaI manner. Sherídanv. State,3l3

Ark. 23, 852 S.W.2d 772 (1993); Johnsonv. State,308 Ark. 7,

823 S.W.2d 800 (1992), cert. denied, l12 S.Ct. 3043 (1992).

Here, the victim, while in her home in the middle of the day, was

shot execution-style in the back of the head with a large-caliber

weapon. Numerous items were taken from her home. The

robbery-murder in this case is similar to the robbery-murders in

Johnsonv.state,30S A¡k. 1,823 S.W.2d 800 (1992);Witmore

v. State,296 Ark. 308, 756 S.V/.2d 890 (1983); and Fretwell v.

State,289 Ark. 91, 708 S.W.2d 630 (1986) that were punished

with the death penalty. The death penalty in this case was not

freakishly or arbitrarily applied.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been

App. B, Pg. 30a

D¡rv¡s y. Srnrn

272

Cite as 314 Ark. 257 (1993)

[3 l4

examined, and this review has uncovered no prejudicial errors

warranting reversal,

. Affirmed.

Gts,zn, J., concurs.

Tou Gu,zE, Justice, concurring. I concur to update the

history of our review of capital cases contained in Robertsonv.

State,298 Ark l3l, 765 S.W.2d 936 (1989) (Hickman and

Glaze, JJ., concurring), Fretwell v. State, 289 Ark. 91, 708

S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and

Dentonv. State,280 Ark. 190, ó55 S.W.2d 441 (1983) (Hickman, J., concurring)

Since Roåertson,we have upheld the imposition of the death

sentence in the following cases: Ruiz and Dentonv. State,299

Ark. 144, 772 S.W,2d 29'l (1989) (affirmance of imposition of

death sentence after resentencing proceeding). (After escaping

from an Oklahoma prison, Ruiz and Denton kidnapped, robbed

and shot to death the Magazine, Arkansas, town marshall and a

Corps of Engineers employee.); Parkerv. State,300 Ark. 360,

779 S.V/.2d 156 (1989), cert. denied, 498 U.S. 883 (1990)

(affirmance on retrial after case reversed and remanded by this

court on capital murder conviction in Parker v. State,292 Ark.

421,731 S.W.2d 756 (1987); petition for post-conviction relief

denied, Parkerv. State, CR88-95 (February 18, l99l). (Parker

shot to death his former wife's parents.); Píckens v. State,30l

Ãrk. 244,783 S.W.2d 341 (1990), cert. deníed, 497 U.S. l0l I

(1990) (affirmance of imposition of death penalty after second

resentencing proceeding); petition for post-conviction relief denied, Pickens v. State, CR 89-94 (December 17, 1990), cert.

denied,497 U.S. 101 I ( l99l ) (Pickens shot and killed a customer

in a convenience store robbery); '[4raínwright v. State,302 Ark.

371,79O S.W.2d 420 (1990), cert. deníed,499 U.S.913 (1991);

petition for post-conviction relief denied, Wainwright v. State,

CR 89-79 (January 13, 1992). (Wainwright shot to death a

convenience store clerk in an robbery.); Coulter v. State,304

{rk.527,804 S.W.2d 348 (1991), cert.

U.S.

I l2 S.Ct. 102 (1991). (Coulter raped and murdered a ñve year

old child.); Johnsonv. State,308 Ark. 7 ,823 S.W.2d 800 (1992).

(Johnson bludgeoned to death a night watchman); and Hendersonv. State, 3l I Ark. 398,844 S.W.2d 360 (1993). (Henderson

denied

-,

App. B, Pg. 31a

Anr.l

Dnvn v. Srlrr

273

Citc as 314 Ark. 257 (1991)

murdered the owner of a furniture store during a robbery.)

Petitions for post-conviction relief were also denied in

Whitmore v. State, 299 Ark. 55, 771 S,W,2d 266 (1989).

(Whitmore robbed and stabbed to death an elderly woman at her

home.); and,Størrv. State,CR 87-20 (November 12, 1989), cert,

deníed,489 U.S. I100, 110 S.Ct. 1327 (1990). (Starr sexually

assaulted and bludgeoned to death a woman at her home.)

We granted post-conviction,relief in part in O'Rourke v.

state,298 Ark. 144,765 S,W.zd 916 (1989). We stayed the

appeal of an order in O'Rourk¿ and remanded for consideration

by the trial court of whether O'Rourke was competent to abandon

his post-conviction appeal. O'Rourkev. Slate,300 Ark. 323,778

S.W.2d 938 (1989). We subsequently granted the State's motion

to dismiss the post-conviction appeal. O'Rourkev. Slate, CR 89145 (January 14, l99l). This court then denied a motion filed by

O'Rourke to reinstate the appeal of the order denying post'

conviction relief. O'Rourke v. State, CR 89-145 (February 24,

1992). (O'Rourke murdered his mother and father.)

The judgment and death sentence were reversed and remanded in Clements v. State,303 Ark. 319,796 S.W.2d 839

(1990). On retrial, the defendant was convicted of second degree

murder and sentenced to twenty years imprisonment.

We affirmed the judgment of conviction but reversed the

death sentence and iemãnded the case for resentencing iñ

Sanders v. State,308 Ark. 178,824 S.rW.2d 353 (1992). The

death penalty was again imposed and is on appeal to this court.

(Sanders robbed and shot to death a Hot Spring County couple.)

We reversed and remanded the case for retrial in Duncønv.

State,309 Ark.2l8,83l S.W.2d 115 (1992), and in Mauppínv.

State,309 Ark. 235,831 S.W. 104 (1992). On retrial, Mauppin

was again convicted of capital murder but sentenced to life

imprisonment without parole.

InWardv. State,308 Ark. 415,827 S.W.2d I l0 (1992), we

affirmed in part and reversed in part and remanded the case for

resentencing. Ward was again sentenced to death and the

sentence is on appeal to this court. (Ward murdered a conve'

nience store clerk.)

App. B, Pg. 32a

274

Dnvls v. Sr¡.rr

Cite as 314 A¡k. 257 (1993)

13t4

We reversed and remanded Brenkv. State,3ll Ark. 579,

847 S.W.2d l (r993).

We also reversed and remanded the case ol Johnnie Michael

Cox v. State to the trial court for appointment of counsel and

post-conviction proceedings. Cox v, State,305 Ark. 488, 807

S.W.2d 665 (1991). The judgment and death sentence in Cox

were ultimately affirmed by this court. Cox v. State,3l3 Ark.

184, 853 S.W.2d 266 (1993). (Cox's three victims died from a

combination of injuries received when he stabbed and strangled

them and then set afire the apartment they were in,)

We affirmed the judgment and sentence in Sherídan v.

State,3l3 Ark. 23,852 S.W.2d 772 (1993), (Sheridan stabbed to

death a pregnant woman.)

The death sentence has been executed in four cases since

Robertson; Ronald Gene Símmons v. State, John Edward

Swíndler v, State, Rickey Ray Rector v. State, and Steven

Douglas Hill v . State. (Simmons shot and killed several persons

in a shooting spree. This court upheld his right to waive a direct

appeal ofhis conviction and death sentence. Franzv. State,296

Ark. 181,754 S.W.2d 839 (l9SS); Swindler killed a Ft. Smith

police officer; Rector killed a Conway police officer; and Hill, who

had escaped from the Arkansas Department of Correction, shot

and killed an Arkansas State trooper who was attempting to

arrest him.)

It was noted in the concurring opinion Ío Robertso,n in 1989

that several cases appeared to have disappeared into the federal

judicial machinery. Now, four years after R obertson, it is notable

that two of the cases mentioned remain in the exact same posture.

The cases of Eddie Lee Miller, affirmed by this court in I 98 I , and

Clay Anthony Ford, affirmed in 1982, remain in the United

States District Court on pending petitions for writs of habeas

corpus. The habeas corpus petitions in the two cases have

languished in the district court for nearly twelve years in the

Miller case and more than ten years inthe Ford case. In the case

of Darrell Wayne Hill, affirmed by this court in 1982, the district

court granted the petition for writ of habeas corpus after it

languished for approximately ten years. The matter is now on

appeal by the state to the Eighth Circuit Court of Appeals.

(Miller murdered a storekeeper in a robbery; Ford, an escapee

App. B, Pg. 33a

Anr.l

275

from the Tennessee Department of Correction, shot and killed an

Arkansas State Police trooper; Hill kidnapped, robbed, and shot

two men in a robbery of a service station, one of the men died.)

App. B, Pg. 34a

LrnTC-¿Jü J

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VOLUUE 2 OP 2

TII{ R. UORRIS

ÀTTOR¡IBY ÀT LÀIT

2882 W. WÀLÌ{U,I, SUITß 6

ROGERS, AnKANSÀS 72756

BÀn NO. 85114

(s01) 631-t673

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tylRy 1 3 199õ

LESLIE I,I'. STEEN

CLERK

App. C, Pg. 35a

III

The Àpperrant moved for funds to emproy and fndependent

psychlatrlc expert. (T 103,513) lhe Clrcult Court denled that

Motlon. (T 85, 516). The Àppellant, based upon fundamental

falrness, asserts that the court erred, ln denylng the Appelrants

llotlon

The Arkaneas rures of evldence, rure 503 (d)(2)and (3), ft

states that wben an examlnatlon ls ordered by a court, tbe

con¡uunlcatlone ¡uad'e in the courae tbereof are r.ot prlvlleged.

Prlor to an examlnatlon by a State appolnted psychfatrtst at Ozark

Guldance Center or the State Hospltal, the Defend,ants are always

read thelr Mlranda rlghts, wblcb Lncludes a statement "anythlng you

say can or may used agalnst you ln a court of law., The Appelrant,

who had been ordered to be exanl¡ed at the State Hospltal cannot

assert hts rlght of doetor/patlent prlvllege. Tbe Àppellant

aeaerts that thls fact has a detrfmental effect oD any type of

relevant and accurate dlagnosls that the Appeltant nay recelve from

these facilttles.

Not belng able to assert the doctor/patlent

prlvllege bas a cbllrtng effect on auy accurate diagnosls.

Should the Court grant the Àppellant's t{ot!.cn for funds to

enploy an lndepenrlent psychiatrlc expert, alI communlcatlons

between that exaniner and the Appetlant would be prlvlleged untll

such tlme as tbe Defendant wlshes to rely upon the condltlon as an

element of a clalro or def ense. In contrast wltb ¡.n evaluatfon done

439

App. C, Pg. 36a

by the Stat,e Hospltal or a Court appolnted., reglonal medlcal health

center, the reports from those facllltles are l¡umedlately avallable

to tbe prosectfon for thelr use.

The Unlted States Supreme Court ln Ake v. Oklahoma, 47O U.S.

68 (1984), hetô that when a Defend,ant has made prellmlnary showlng

that hls sanlty at tbe tlme of the offense ls llkely, to be a

slgnlffcant factor at trlal, tbe constÍtutlon requlres that a State

provlde access to a psyehlatrlc'g asslgtant on this lssue lf the

Defendant cannot otbenrlse afford one. The Court stated '[tlblg

Court has long recognlzed tbat -wben a State brings It's Judlclal

poner to bear on aD lndlgent defepdant fn a crÍminal precedlng lt

must take steps to assure that tbe defendant has a fair opportunity

to present bls defense. " Id. at 76

Thls elementary princtpal, grounded ln slgnlficant part on the

Fourteenth Àmend,ment's due process guarantee of fundanental

fafrness, derlves fron the berlef that Justlce cannot be equal

where, slnply as a result of bis poverty, a defendant ls denled the

opportunlty to partlclpate meanlngfully ln a Judlelal precedlng ln

wblch hls llberty ls at stake." Id. at ?6. Iu Dunn v. State, 722

S.lil.2d 595 (198?), the Supreme Couri of Arkansas stated tbat the

Appellant, Dunn, was glven a psychtatric examlnatlon at the State

Hoapltal and that thls examinatton adequately protected hls rlghts

under Àke v.. oklêbona. Tbe court ln Dunn went on to say that tbe

Àrkansas State Hospltal was an lnstttutlon whlch had no part ln the

prosecutlon of crlmlnals.

Àltbough the Àrkansas State Hospftal ls an Instl.tutlon whlcb

bas no part ln the prosecutlon of crimLnals, lt does not asslst ln

a

440

App. C, Pg. 37a

the evaluatlon, preparatlon, and presentatlon of the defense. The

Supreme Court ln Ncg has long recognÍzed that meanJ.ngful aecegg

requlres "makJ.og certaln that he has access to the raw materials

lntegral to the bullding of an effectlve defense.,' Ake at 77. rn

Brltt v,. North ca.rol.l"na, 404 u.s. 226 ltg7tl , the supreme court

beld that the State must provlde tbe Defendant 'basic tools, of an

adequate d,ef ense. rd . at 227 tn, i$g, tbe supreme cou¡t, extended

tbe ôefluttlon of 'basic toots" to lncluôe the employnent of a

psychlatrtc expert for a Defendalt ln a capltar case wben tbe

Defendant's sanlty would be a slgnlflcaut Íssue at trlal.

rd. at

82-83. The Appellant, Don Davl",l atd not recelve the cooperation

from the State Hospltal that would assLst hln In tbe evaluatlon,

preparation, and presentatlon of the defense. The Àppellant had to

move for an Order dl.recting tbe Àrkansas State Hospltal to furnlsh

all lnformatlon regard,lng Don Davls. (T 233). Even wltb a sLgned

authorizatlon by the Def.endant, authorlzlng the Defendant'e

attorneþ to obtaln any anð aII ned,lcal and psychologlcal records

pertalnlng to tbe Defendant, the, Arkansas State Hospltal stated

that tbey would not release any records to tbe Defendant's counsel

wltbout a Court Ord,er. In a lrlotlon Hearlng beld Nove¡nber B, lggl,

Àppellant's counsel bad to move requlre tbe State Hospltal to turn

over lts medlcal records. (T 617}. The court issued an order to

tbe state Hospltal to turn over Lt,s records to tbe Apperlant,s

counsel. (T 518).

The Appellant asserts that fundamentat fairress requires that

tbe eppellant have tbe prlvllege of doctor/patlent conmunleatlon.

The Appellant can obtaln thls prlvllege by enploylug aD fndependent

44t

App. C, Pg. 38a

psyshlatrlc expert wlth the fu¡¡ds granted by the court. under Àke',

and lnd'ependent psychlatrlc expert ls a nbasie tool"

that will

'ln

asslst the Àppetlant

the evaluation, preparatlon, and

presentatlon of the defense. The Appellant,s fnterest ln

preventlng an lnaecurate d.etermlnatfon'of guÍIt outweJ.ghs the

State's Lnterest ln avold.lng the aôdltional eost where tbe

asslstanee of an expert would r"uo"" tbe risk of an erroneous

outcome. Id. at 7g-g2

442

App. C, Pg. 39a