KARL D. ROBERTS v. STATE OF ARKANSAS
No. CR-18-845
SUPREME COURT OF ARKANSAS
Opinion Delivered: January 30, 2020
2020 Ark. 45
APPEAL FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-99-70], HONORABLE JERRY RYAN, JUDGE, AFFIRMED.
Karl D. Roberts appeals from the Polk County Circuit Court’s order denying his amended petition for postconviction relief pursuant to
Roberts was convicted of the capital murder of twelve-year-old Andria Brewer, who was his niece, and sentenced to death in May 2000. He filed a waiver of his rights to appeal and to pursue postconviction remedies, but this court conducted an automatic review pursuant to State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999), and affirmed his conviction and sentence in Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003) (Roberts I).1 The record shows that Roberts went to Andria’s house when he knew her parents were not home, ordered her to get into his truck, drove to a remote area, raped her, and then strangled her to death. Roberts later confessed to police. At trial,
the evidence showed that Andria was taken from her home by Roberts on May 15, 1999. According to his confession, Roberts knocked on the door, and Andria answered. Roberts knew that her parents were not home at the time. He told Andria to get into his truck. Andria then asked him what was wrong, and Roberts responded by telling her to just get in the truck. Andria complied. Roberts then proceeded on a journey of approximately ten miles that, according to Arkansas State Police Detective Lynn Benedict, would have taken twelve to thirteen minutes. Benedict also stated that the road that Roberts took continued to become darker and more remote, covered with low hanging trees and brush.
According to Roberts’s statement, Andria asked him to take her home several times along the way. Roberts kept on driving. He eventually stopped his truck on an old logging road and told Andria to get out. When she asked him what he was going to do, he told her he was going to “fuck” her. He told her to take off her shirt and lay down. He then took off the girl’s pants and raped her. While he was violating her, Andria tried to get away from him, but he was able to hold her down. He told police that when he finished raping her, he knew that he could not let her live, because he had ejaculated inside her. He then decided to kill her by mashing his thumbs into her throat. Once the child turned blue and
passed out, he dragged her body off into the woods and covered her up with limbs and brush. He then took her clothes and threw them off a nearby bridge, into a creek.
Roberts I, 352 Ark. at 507, 102 S.W.3d at 494–95. The jury rejected Roberts’s defense that he was unable to conform his conduct to the requirements of the law due to a brain injury, found him guilty of capital murder, and ultimately sentenced him to death.
Numerous proceedings followed. State v. Roberts, 354 Ark. 399, 123 S.W.3d 881 (2003) (Roberts II) (per curiam affirming the trial court’s finding, following hearing at which Roberts appeared pro se, that Roberts was competent to waive Rule 37.5 rights); Roberts v. Norris, 526 F. Supp. 2d 926 (E.D. Ark. 2007) (staying federal habeas corpus action while Roberts exhausted his claims in state court that he did not competently waive his right to appeal and to seek state postconviction relief); Roberts v. State, 2011 Ark. 502, 385 S.W.3d 792 (Roberts III) (dismissing appeal upon finding that the circuit court was without jurisdiction to entertain Roberts’s Rule 37.5 petition, and this court was likewise without jurisdiction to hear an appeal); Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771 (Roberts IV) (denying petition to recall mandate issued after this court’s mandatory review of Roberts’s conviction and sentence in Roberts I and denying petition to reinvest jurisdiction to consider writ of error coram nobis); Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372 (Roberts V (handed down simultaneously with Roberts IV)) (holding that failure to ensure that Roberts was competent to waive his rights to postconviction relief constituted breakdown in appellate process that warranted reopening his postconviction proceedings).
In December 2014, a competence hearing was held in Polk County Circuit Court. The State presented the testimony of Dr. Mark Peacock, a forensic psychologist with the Arkansas State Hospital, and the defense presented the testimony of neuropsychologist Dr. Daryl Fujii, who specializes in psychotic disorders stemming from traumatic brain injury. Both doctors concluded that Roberts was schizophrenic and that his mental illness affected his ability to make a rational decision about his case. Although the circuit court found that Roberts was competent to waive his postconviction rights, this court reversed and remanded, holding that the circuit court was clearly erroneous when it concluded that Roberts was competent to waive postconviction review. Roberts v. State, 2016 Ark. 118, 488 S.W.3d 524 (Roberts VI). Upon remand, Roberts filed a 171-page petition for postconviction relief. His final amended petition, filed on February 27, 2017, asserted eighteen claims for relief in ten pages. Roberts’s pre-hearing brief included the facts and legal support for the claims in his petition.
The circuit court held a hearing on Roberts’s petition on May 15–17, 2017. Defense counsel presented the testimony of eighteen witnesses, including four expert witnesses, and introduced over forty exhibits. Three mental-health experts testified for the defense. Dr. Matthew Mendel, a clinical psychologist, testified regarding the effects of extreme trauma and how that trauma shaped Roberts. Dr. Daryl Fujii, who had also testified at the 2014 hearing on Roberts’s competence to waive postconviction remedies, attested to Roberts’s schizophrenia and its impact on his ability to assist his counsel in his own defense and conform his conduct to the requirements of the law. Finally, Dr. Garrett Andrews, a neuropsychologist, concluded that, based on objective data, Roberts was intellectually disabled as defined by the Diagnostic and Statistical Manual of
Our standard of review in Rule 37 petitions is that, “on appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. 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.” Wood v. State, 2015 Ark. 477, at 2–3, 478 S.W.3d 194, 197 (citations omitted). For claims of ineffective assistance of counsel, we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Watson v. State, 2014 Ark. 203, at 3, 444 S.W.3d 835, 838–39. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel’s performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Springs v. State, 2012 Ark. 87, at 3, 387 S.W.3d 143, 147. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Sales v. State, 2014 Ark. 384, at 6, 441 S.W.3d 883, 887. We also recognize that “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” See id. (quoting Strickland).
I. Competency to Stand Trial
First, Roberts argues that overwhelming evidence establishes that he has long suffered from schizophrenia; that his schizophrenia rendered him incompetent to stand trial; and that trial counsel failed to investigate and present evidence of his schizophrenia during the guilt phase. Regarding the alleged deficiencies in trial counsels’ performance, we conclude that counsel cannot be considered ineffective
In addition, Roberts argues that he was schizophrenic at the time of the trial and that his schizophrenia rendered him incompetent to stand trial. A petitioner may also qualify for Rule 37 relief, regardless of trial counsel’s performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack. Cothren v. State, 344 Ark. 697, 704, 42 S.W.3d 543, 547–48 (2001). It is well established that the Due Process Clause of the
Here, the issue of Roberts’s competency to stand trial was litigated before the trial court prior to trial, and he was found to be competent. At the postconviction hearing, Roberts’s counsel presented evidence that the competency testing was flawed. In the order denying Rule 37 relief, the court found that Roberts had not overcome the previous finding of competency and that “Petitioner has not demonstrated that his current mental condition equates with his condition at the time of trial in 1999.” We cannot say that the trial court’s denial of relief on this point is clearly erroneous, and we thus affirm.
Roberts argues that trial counsel was ineffective for not pursuing a change of venue in light of the media attention in the rural judicial district where the trial was held. Lead counsel Buddy Hendry filed a motion asking for the trial to be moved to Garland County, in the neighboring judicial district, but withdrew the motion a few days later. Roberts argues that the decision to withdraw the motion was not based on trial strategy, but rather, the decision was borne out of counsel’s dereliction of duty. There was testimony at the postconviction hearing that defense attorney Darrel Blount was supposed to get affidavits from citizens of Montgomery County that Roberts could not receive a fair trial there, but he failed to do so because he was busy with other things. Without those affidavits, Hendry feared the venue might be changed to the other county within the judicial district (Montgomery County), which would be worse than Polk County, where at least Roberts had family. The circuit court found that the decision to seek a change of venue is a matter of trial strategy and denied relief. See Stalnaker v. State, 2015 Ark. 250, at 8, 464 S.W.3d 466, 472 (per curiam) (the decision whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue for debate under our postconviction rule). While we acknowledge Roberts’s argument that the evidence in this case falls outside the typical venue decision that is a matter of trial strategy, we nonetheless find no clear error in the circuit court’s denial of relief on this point. To establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Van Winkle v. State, 2016 Ark. 98, at 13, 486 S.W.3d 778, 788. Roberts has not done so, and therefore he has failed to demonstrate prejudice as required by the second prong of Strickland. See id.
III. Juror Bias
For his third point on appeal, Roberts argues that he was denied his constitutional right to an impartial jury when jurors failed to disclose their actual bias during voir dire. He challenges the impartiality of jurors Dennie Wornick and Vickie Denton, both of whom averred during voir dire that they would be impartial. Appellant points to testimony from the postconviction hearing, some seventeen years after the trial, that Wornick believed “the law says” premeditated murder should result in imposition of the death penalty and that Denton was biased against Roberts because of pretrial publicity and her belief that Roberts should get the death penalty if found guilty. The circuit court found this claim procedurally barred, citing Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006), and Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995). Indeed, this court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court, and a defendant’s remedy for alleged juror misconduct is to directly attack a verdict by requesting a new trial pursuant to
IV. Courtroom Atmosphere
Under this point, Roberts argues that he was denied his constitutional right to a fair trial because the prejudicial courtroom atmosphere violated his right to due process.
The courtroom atmosphere was apparently tense2 and included the victim’s family members and others wearing buttons with her picture. However, the circuit court found that Roberts’s “bare allegations” on this point could not sustain a finding that he was deprived of his fundamental right to a fair trial. In addition, the circuit court found that Roberts failed to meet his burden of demonstrating that counsel’s performance was ineffective under Strickland. We see no clear error and affirm on this point.
V. Responding to Prejudicial False Testimony
Next, Roberts contends that trial counsel was ineffective for failing to reasonably respond to false testimony presented by the State regarding his earnings and driving record. Attorneys have a well-established duty to conduct reasonable records searches, including employment records and public criminal history. Rompilla v. Beard, 545 U.S. 374, 385–86 (2005). Here, Roberts alleges that his trial counsel’s failure to investigate his criminal and financial history was objectively unreasonable.
Regarding Roberts’s earnings, his employer testified that Roberts was a carpenter’s helper and did concrete finishing and operated equipment such as a small truck or backhoe. Roberts earned $11.50 an hour and time-and-a-half for any overtime, plus a bonus; he was making $50,000 a year. During closing argument, the prosecutor argued that “he’s not the sharpest knife in the drawer, but he’s sharp enough isn’t he, to make $50,000 a year as a construction worker.” At the postconviction hearing, Social Security records were introduced that showed that the salary figure was exaggerated. Nonetheless, the evidence showed that Roberts had steady gainful employment for several years preceding the murder. Even if Roberts could show deficient performance by his trial counsel, he could not show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s error on such a relatively minor point.
Regarding Roberts’s driving record, the prosecution challenged the notion that Roberts could not conform his conduct to the requirements of the law by pointing out his satisfactory driving history. At trial, evidence was introduced of two speeding tickets, in 1996 and 1998, but in fact Roberts had eleven speeding violations and had nearly had his license taken away. However, in the nine years immediately preceding the murder, he received only four traffic citations—an average of less than one ticket every two years. As the State points out, the introduction of the evidence of the additional tickets may well have harmed Roberts’s claim that he was incapable of conforming his conduct to the law because the jury could have concluded from the five-year gap between his two most recent tickets and the next most recent ticket that Roberts had learned from the consequences of his previous actions and had, in fact, subsequently conformed his conduct.
VI. Failure to Present Mitigation Evidence
For his sixth point on appeal, Roberts argues that his trial counsel was ineffective in failing to present mitigation evidence at the penalty phase. Specifically, he points to evidence presented at the postconviction hearing of abuse by Roberts’s father, the severity of his near-death accident at age twelve, his schizophrenia and family history of mental illness, and the death of his nephew in the days leading up to the offense. The circuit court thoroughly analyzed the evidence presented at trial and the evidence postconviction counsel argued should have been presented, and under the Strickland standards, was not convinced that counsel’s performance had been ineffective. Having carefully reviewed the record, we see no clear error in the trial court’s finding and affirm on this point.
VII. Jury’s Alleged Failure to Consider Mitigation Evidence
On this point, Roberts argues that trial counsel and appellate counsel were ineffective for failing to challenge the jury’s failure to consider mitigation evidence as shown by the jury forms. Roberts offered sixteen mitigating circumstances in Forms 2A, 2B, and 2C. The jury checked nine circumstances in Form 2A, signifying that all members of the jury agreed those probably existed, but it did not place a check by any of the remaining seven circumstances on Forms 2B or 2C. Form 2B was to be checked if one or more members of the jury (but less than all) believed that the mitigating circumstance probably existed; Form 2C was to be checked if there was some evidence presented to support the circumstance but the jury unanimously agreed that it was insufficient to establish that the mitigating circumstance probably existed. Roberts argues that the jury failed to properly consider the mitigating circumstances it did not check on any form,3 which is critical because the jury was obligated to weigh the aggravating circumstance found unanimously to exist beyond a reasonable doubt against “any mitigating circumstances found by any juror to exist.” The circuit court denied relief on the basis that the issue had been reviewed on direct appeal. Indeed, in Roberts I, this court specifically addressed the completion of the jury forms on mitigating circumstances and held that there was “no error.” Roberts I, 352 Ark. at 511, 102 S.W.3d at 497. We affirm on this point because the trial court did not clearly err in determining that this issue could not be relitigated. See Kemp v. State, 348 Ark. 750, 765, 74 S.W.3d 224, 232 (2002) (“Rule 37 does not allow appellant to reargue points decided on direct appeal.”).
VIII. Ineligibility for Death Penalty Due to Intellectual Disability
Roberts argues that he is categorically ineligible for the death penalty under the
IX. Ineligibility for Death Penalty Due to Severe Mental Illness
Finally, Roberts argues that the
X. Conclusion
We find no clear error in the circuit court’s order denying Rule 37 relief, and we affirm.
Affirmed.
Hart, J., dissents.
The facts of this case are tragic and undisputed. Roberts raped and killed Andria Brewer, known by those close to her as Andi, when she was just twelve years old. Without doubt, Andi’s death was and is a painful loss for her family and her community. However, it is also undisputed that Roberts is sick. He suffers from schizophrenia. His diagnosis is contributed to and exacerbated by structural damage to the integrity of Roberts’s brain. As a child, 15 percent of Roberts’s brain was destroyed when a dump truck ran over him and left him in a coma. As this court acknowledged in Roberts VI, the evidence of Roberts’s schizophrenia and reduced cognitive state is “undeniable.” 2016 Ark. 118, at 8, 488 S.W.3d 524, 529.
All the evidence presented below supports the conclusion that Roberts was incompetent both at the time of the crime and for purposes of standing trial. Much of the litigation in this matter has revolved around the past opinions of two experts, Dr. Mallory and Dr. Wetherby, who examined Roberts before trial in 1999 and concluded he was competent to stand trial, though both acknowledged reservations in their opinions. Importantly, those opinions have since been dispelled. The clinical assessments that formed the basis for those two opinions were incorrectly scored and incompletely administered.
Both doctors administered the Georgia Competency Test (GCT), and both doctors mishandled the questions designed to assess whether the subject can assist his attorneys in his defense. As an example, Dr. Mallory noted at the pretrial competency hearing that “if someone were to lie about him in court, . . . he would tell his lawyer,” but on the GCT, Roberts actually said he would “call them a liar out loud” and “I couldn’t control myself.” Moreover, Dr. Mallory entirely failed to administer the portion of the test meant to identify psychosis. Similarly, Dr. Wetherby gave Roberts a passing score (at least “20”) on the competency test she administered, but the evidence presented below indicates that Roberts actually scored only a 17 or an 18—a failing score that would have indicated Roberts was incompetent to stand trial. These incorrect and incomplete evaluations were what Dr. Mallory and Dr. Wetherby based their opinions on in determining that Roberts was competent to stand trial. At the hearing below, the State presented no evidence of its own to contradict the assertion that these errors did, in fact, occur.
Roberts’s postconviction attorneys demonstrated below both that these errors occurred and that they were material. Had
In short, Roberts’s postconviction attorneys established that his cognitive state was so reduced by disease and trauma that he could not assist his trial attorneys in preparing and presenting his defense—manifesting all the way up to and specifically including the trial itself. The evidence presented at the postconviction hearing to show Roberts’s incompetence was overwhelming and uncontroverted in all material respects—including the salient errors by the experts who examined Roberts before trial.
In its order denying Roberts’s petition, the lower court acknowledged the problems with the original competence evaluations, but never assessed the significance of those problems. Instead, the lower court simply opined that Roberts’s postconviction attorneys failed to meet their burden of proof:
[Petitioner argues that the earlier] determination that Petitioner was competent to stand trial was “based on incomplete administration and incorrect scoring of the Georgia Competency Test.[“] In other words, according to Petitioner the trial court and the Supreme Court got it wrong in 1999 and 2003.
…
Petitioner has failed to overcome the finding that Petitioner was not competent [sic] at the time of his trial. In sum, Petitioner has not demonstrated that his current mental condition equates with his condition at the time of trial in 1999.
R. 847-50 (underlines added). The lower court declined to actually address how the incorrectness of the assessments that supplied the basis for that original “finding” would impact the analysis. To affirm that holding, the majority essentially does the same:
Here, the issue of Roberts’s competency to stand trial was litigated before the trial court prior to trial, and he was found to be competent. At the postconviction hearing Roberts’s counsel presented evidence that the competency testing was flawed. In the order denying Rule 37 relief, the court found that Roberts had not overcome the previous finding of competency and that “Petitioner has not demonstrated that his current mental condition equates with his condition at the time of trial in 1999.” We cannot say that the trial court’s denial of relief on this point is clearly erroneous, and we thus affirm.
(Maj. Op. at 8). With all due respect to the majority, I disagree.
As did the lower court’s order, the majority opinion fails to acknowledge the significance of what appears to be uncontroverted fact: (1) the assessments that formed the basis for the original opinions regarding Roberts’s competence were not properly performed; (2) had those assessments been administered completely and scored correctly, the results would have shown that Roberts could not assist his attorneys and was incompetent to stand trial; and (3) the deference that has since
By our law and our constitution, individuals situated as Roberts was at the time of his prosecution are incompetent to stand trial, and when it is determined that such an individual was tried and convicted despite his incompetence, that conviction violates due process and must be vacated. See
I dissent.
Lisa G. Peters, Federal Defender, by: Scott W. Braden, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.