Davis v. StateDavis v. State
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This appeal arises from a trial court’s denial of a Rule 37 petition. Appellant, Don William Davis, shot and killed Jane Daniel in the course of burglarizing her home in Rogers. Appellant was charged with capital murder, burglary, and theft of property. He was sentenced to death by lethal injection on the capital-murder charge, and was sentenced to forty-year sentences on the burglary and theft charges. We affirmed appellant’s conviction on his direct appeal in Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993) (‘‘Davis I’’), cert. denied, 511 U.S. 1026 (1994). Appellant filed a petition for postconviction relief pursuant to
For many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is
(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack ...[.]
Other grounds that we have held are so fundamental that a breach renders a judgment a complete nullity and therefore can be addressed under
On appeal from a trial court’s ruling on
I. Denial of due process
At arraignment, the trial court ordered an evaluation, and appellant received a psychiatric evaluation at the state’s expense from Dr. Travis Jenkins at the Ozark Guidance Center in Springdale. Following Dr. Jenkins’s examination, appellant, joined by the State, filed a motion for psychiatric evaluation at the Arkansas State Hospital. The trial court agreed and ordered appellant to undergo a thirty-day evaluation at the state hospital. The psychologist’s
Appellant argues that he was denied due process when the trial court denied his motion for funds to hire an independent psychiatrist. This argument merely repeats the arguments made in the trial court and direct appeal that have been previously decided in Davis I, supra, and is not appropriate for postconviction relief. Addressing this issue on direct appeal, we stated:
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 Davis did have attention-deficit hyperactivity disorder residual [ADHD], 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.
Next, Davis asked the court for funds to employ an independent psychiatric examiner, which the court refused to do. ... In light of these cases, we conclude that the trial court did not err in refusing to approve funding of a private psychiatric evaluation for Davis after approving two previous evaluations.
Davis I, supra.
Notwithstanding our consideration of this issue in the direct appeal, appellant now argues that our decision in that appeal did not reach the question of the employment of a private psychiatrist to assist in the sentencing phase. We disagree and hold that Davis I, supra, reflects the consideration at trial of evidence produced through two previous psychiatric examinations. Those examinations revealed, in addition to a lack of psychosis, a showing of psychological problems relating to the presence of mitigating circumstances, such as ADHD, psychoactive substance abuse, and antisocial personality disorder. This testimony was available for consideration by the jury in the sentencing phase, and the issue was reached on direct appeal. Therefore, we conclude that the trial court’s decision denying
II. Ineffective assistance of counsel
Appellant next argues that his trial counsel was ineffective for not sufficiently supporting his argument that he should have been provided funds to employ an independent psychiatrist to advise him on the mitigating factors in the sentencing phase. Appellant specifically argues that the failure of the trial counsel to cite and argue the effect of our decision in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), constituted ineffective assistance of counsel, and violated the protections of the Sixth and Fourteenth Amendments of the United States Constitution.
Addressing this issue, we turn to the analysis provided in Strickland, supra. We recently restated the Strickland standard for assessing the effectiveness of trial counsel:
According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.
Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999).
‘.[11] Appellant argues that because his attorney failed to cite Coulter, supra, he should be afforded postconviction relief and that his counsel should have developed the issue further. However, Coulter, supra, did not resolve this issue, but rather left it undecided. We cannot say that counsel’s failure to cite Coulter, supra, was so serious ah error that it deprived appellant of a fair trial, or that he would have prevailed if trial counsel had cited this case. Strickland, supra.
The request for another independent expert was presented and denied during the trial. In Davis I, we concluded as a part of our Ark. Sup. Ct. R. 4-3 (h) review that the denial of this request did not constitute reversible error. We now hold that the trial court was not clearly erroneous in finding that ineffective assistance of counsel was not proven on this point.
III. Denial of funds to employ an independent psychiatrist witness
In our previous analysis of the first point raised in this appeal, we affirmed the trial court’s finding that
The purpose of
IV Recusal and continuance
Appellant argues that he was prejudiced by the trial court’s denial of his motion to recuse. Prior to the
There is a presumption of impartiality on the part of judges. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). The decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999). The question of bias is usually confined to the conscience of the judge. Black, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Trimble, supra. To decide whether there was an abuse of discretion, we review the record to see if any prejudice or bias was exhibited. Black, supra; Dolphin v. Wilson, supra.
Although it was alleged that the trial judge was the target of a judicial ethics inquiry, appellant has not included these complaints in the record before us. Appellant has not alleged any specific instances of bias, nor has he shown any way that he was prejudiced by the judge’s denial of his motion to recuse. Moreover, this point does not address any of the fundamental issues appropriate for a
Appellant also argues that the trial court erred in denying his
In the present case, appellant has failed to demonstrate prejudice from the court’s denial of his continuance under Davis, supra. Appellant’s
Appellant also argues that the trial court committed error in denying his motion for continuance on the grounds that his attorney, Mr. Huggins, was not allowed time to become certified by the Public Defender Commission to handle this death-penalty case, as required by
V. Withdrawal of counsel
Appellant argues that the court at the
VI. Alternate theories
Without citation to applicable authority, appellant argues that the State is precluded from charging the offense of capital murder under the alternate theories of felony-murder under
There is no showing that appellant objected to either the information or the verdict form at trial. During the
VII. Dr. Jenkins’s testimony
Appellant called Dr. Jenkins to testify during the sentencing phase. Appellant now contends that his trial attorneys were ineffective because they did not object during the testimony of Dr. Jenkins when he responded to a question on cross-examination concerning his psychiatric interview with appellant. On direct examination, appellant’s counsel asked Dr. Jenkins if he had reviewed a report on appellant prepared by the Arkansas State Hospital. Dr. Jenkins replied that he had reviewed the report. On cross-examination, the State asked Dr. Jenkins if, in his opinion, appellant had “the ability to form the specific mental intent of premeditated and deliberated purpose in killing a person[.]” Dr. Jenkins responded by volunteering that “I did not have the opportunity to interview him around all of those events because of his Fifth Amendment rights, but — [.]” The State then restated its question, making it clear that the question
We have held that an inadvertent comment by a witness with respect to an accused’s post-arrest silence that was not responsive to the prosecutor’s question did not constitute a violation of Doyle v. Ohio, 426 U.S. 610 (1976), or warrant a mistrial. Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993). Where a comment on a defendant’s post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle, supra. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).
Here, Dr. Jenkins’s testimony was during the sentencing phase of appellant’s trial after appellant had already been found guilty. We conclude that Dr. Jenkins’s inadvertent remark did not violate the principles of Doyle, supra. Accordingly, appellant’s counsel was not ineffective for failure to pursue this issue, and we affirm the trial court on this point.
VIII. Vagueness and overbreadth
In the sentencing phase at trial, the prosecutor presented as an aggravating factor that appellant committed the murder “for the purpose of avoiding or presenting an arrest or effecting an escape from custody.”
This issue is one that should have been presented to the trial court and raised on direct appeal. Weaver, supra. We have rejected this argument in the past. See Bowen v. State, 322 Ark. 483, 911 S.W.2d 55 (1995); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). Appellant has not advanced an argument that would require a different result in this case. Accordingly, we find no error. Any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.
IX. Overlapping statutes
Appellant argues that felony capital murder and premeditated and deliberated murder are identical to and overlap with first-degree felony murder and first-degree murder. Again, this issue is one that should have been presented to the trial court and raised on direct appeal. Weaver, supra. We have repeatedly rejected this contention. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).
In Lee v. State, 321 Ark. 692, 942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we stated that we have discounted this argument on numerous occasions. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous decisions, and we reject this argument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.
X. Mitigating factors
Appellant argues that the sentencing instructions and the jury verdict form did not inform the jury that each juror could consider mitigating factors at all
However, we note that appellant’s claim regarding the jury verdict form has been previously rejected by this court. This same argument was made in Pickens, supra, and we decided the argument lacked merit in that case. We wrote:
The second argument concerning AMCI 1509 is based on the recent United States Supreme Court case of Mills v. Maryland, 486 U.S. 367 (1988).
The appellant claims there is no meaningful difference between the Maryland and Arkansas sentencing forms, but they are, in fact, very different. Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not ail, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms. Therefore, we reject the appellant’s argument.
Id. If we were to reach the merits on this point, appellant’s argument would have no merit.
Additionally, appellant claims that the sentencing scheme is unconstitutional because the word, “shall,” in
XI. Proportionality review
For his last point on appeal, appellant argues that the Arkansas Death Penalty statute is unconstitutional because we do not conduct a proportionality review and have set forth no standards by which such reviews are conducted.
We are not required to conduct a proportionality review of death sentences. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). Although we conducted a proportionality review in the past, we no longer do so. Id. However, at the time of appellant’s direct appeal, we did conduct a proportionality review. In Davis I, supra, we reviewed the facts in appellant’s case with those in other robbery-murder cases where the death penalty had been imposed, and we decided that the death penalty was “not freakishly or arbitrarily applied” under these circumstances. Id. Moreover, appellant’s claim that his trial attorneys were ineffective for fading to raise this claim is meritless under Monts, supra.
Because