Larry Dean ROBERTSON v. STATE of Arkansas
CR 88-56
Supreme Court of Arkansas
February 27, 1989
765 S.W.2d 936 | 131 Ark. 131
DAVID NEWBERN, Justice. Larry Dean Robertson appeals his conviction of capital murder for which he was sentenced to life imprisonment without parole. Robertson was accused of murdering Mrs. Bernice Sanderlin. The evidence showed that Robertson was released from prison and taken by a prison official tо Dumas where he was to get on a bus. He went into a business establishment where he stabbed Mrs. Sanderlin with a pair of scissors. The scissors penetrated her eye and brain and caused her death. He left with Mrs. Sanderlin‘s purse. The judge refused at several stages of the trial to rule on whether Robertson was mentally competent to stand trial. The judge erroneously thought, and stated repeatedly, that the question of competency to stand trial was to be resolved by the jury. We have no choice but to reverse and remand for a new trial.
Robertson was committed to the state hospital for a pre-trial mental examination. The report, filed on June 10, 1987, concluded he was capable of cooperating effectively with his attornеy. On August 7, 1987, the two lawyers who had been appointed to defend Robertson moved to suspend activity in the case and submitted affidavits to the effect that Robertson visualized the issues in his case in a manner incomprehensible to reasonable persons, and that he was hallucinating and unable to assist the lawyers in defending him.
A pre-trial hearing was held to consider several motions, one of which was the motion to suspend activity in the case. Dr. Paula Lynch testified she examined Robertson at the state hospital. She had access to records of other medical facilities, one of which concluded Robertson was schizophrenic and that he had been taking Thorazine, a major tranquilizer, and that Navane, an antipsychotic drug hаd been prescribed for him. She did not interview Robertson‘s family. She found him to be virtually symptom free and concluded he was competent at the time of her evaluation of him. At the close of the hearing, the court denied the motion to suspend activity.
Counsel for Robertson then took Dr. Lynch‘s deposition pursuant to a court order. They asked her whether she had been hospitalized for any condition other than childbirth, and she
Also at the October 5 hearing, counsel presented testimony by Robertson‘s parents to the effect that Robertson had had mental problems, and tendencies toward violence, since his high school days. They also testified about periods of hospitalization for mental illness Robertson had undergone in Mississippi. Dr. Douglas Stephens testified he had interviewed Robertson on several occasions and had concluded he suffered from paranoid schizophrenia and was unable to assist counsel in his defense.
At the conclusion of the hearing, the court denied the motion to suspend the proceedings due to Robеrtson‘s inability to communicate effectively with his counsel. The court stated it would be for the jury to decide if Robertson had a defense of mental defect. The prosecutor then asked the court to make a finding whether Robertson could communicate adequately with his attorneys. The court refused, again stating it was for the jury to decide. As abstracted by the appellant, the discussion was:
Mr. Gibson [the prosecutor]: Could I ask the court to make a finding as to whether or not Mr. Robertson is able to communicate adequately with the attorneys?
The court: No, that would be making a ruling. It‘s for the jury to determine his condition.
Mr. Gibson: I‘m talking about his fitness to proceed.
The court: We‘re going to proceed.
Mr. Gibson: In other words, the Court is so finding he is.
The court: Fit to proceed. The jury has certain responsibilities, and that‘s what they‘re going to do.
Mr. Haddock [defense counsеl]: The Court‘s ruling is, if I understood the Court correctly, that it‘s a jury question for
them to determine whether or not he has present abilities to effectively assist counsel in his defense? The court: Well, no, I‘m ruling that it‘s for the jury to determine or not whether he was able to conform his actions to the requirements of the law on this alleged date.
Although the appellant did not abstract the remainder of the court‘s remarks, they are quoted accurately in the argument portion of his brief, and at page 5. of the state‘s brief it is acknowledged that the court stated just after the discussion quoted above that the court was not making “any ruling” as to Robertson‘s mental condition. The court‘s statement continued as follows:
Now, by finding that, when the jury finds that they‘ll be taking care of all these ancillary matters. Now, they can find whatever they find to be the facts, but I‘m not going to make any rulings as to his mental condition and his abilities to consult with anybody or help anybody.
Throughout the pre-trial proceedings and during the trial, Robertson, against the advice of his counsel, insisted on making statements to the court, some of which could only be characterized as bizarre. He referred to various agencies of the federal government such as the CIA, the NSC, and the FBI, and demanded that the records kept on him by these agencies be furnished to him.
Toward the conclusion of the trial, Robertson insisted on making a statement before the jury. His counsel objected and renewed the motion to suspend the proceedings on the ground that Robertson was inсapable of assisting in his defense. The prosecutor commented that the court was competent to determine whether Robertson was able to assist his counsel. The court denied the motion and again stated it would be for the jury to determine whether Robertson was competent.
The defense presented testimony of Dr. Stephens as well as testimony of Dr. Donald Gold, a psychiatrist who had visited with Robertson and studied his case while Robertson was hospitalized in Memphis for a severe burn. Dr. Gold testified that Robertson was schizophrenic and that the only way he could help his counsel would be by “overtly demonstrating to the world just how bizarre
1. The court‘s duty
It is the duty of the court to rule whether an accused is competent to stand trial. The statute,
The court in this case proceeded correctly to a point. There was no error in refusal to suspend the proceedings after the pre-trial evaluation and hospital report and after Dr. Lynch‘s testimony. Nor was there any necessity to obtain a reevaluation of Robertson еach time his counsel moved to suspend activity in the trial. All the court was required to do, if he remained convinced that Robertson was and remained fit to stand trial, was make that ruling. Instead, he said again and again that it was a matter for the jury to decide.
The state points out that by continuing with the trial, the court could be inferred to have made the ruling. It is also argued that the question of fitness to proceed was not referred to the jury, as no instruction was given on that point. We cannot agree with those arguments. If the court thought the question was one for the jury, continuing the trial was necessary in order to let them decide the issue. Both defense counsel and the prosecutor clearly understood the issue of fitness to stand trial was for the court tо determine, and that explains the fact that neither side offered an instruction on the matter. But absence of such an instruction does not cure the court‘s misunderstanding that by deciding the general issue of Robertson‘s competency the jury would be deciding the “ancillary” matter of his fitness for trial.
2. Dr. Lynch and the Fifth Amendment
Robertson has raised other issues. The only one likely to arise in the event of a new trial is whether the court should force Dr. Lynch to reveal her previous medical history or strike her testimony.
If the issue here were simply whether treatment of Dr. Lynch for psychiatric disorder is privileged, we might reach the same result as was reached by our court of appeals in Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). There it was held, based on Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), that evidence of medical treatmеnt, as opposed to physician-patient communications, could not be withheld because it was not covered by the physician-patient privilege found in
The federal appellate courts have wrestled with whether the testimony of a witness must be stricken where, for example, upon cross-examination the witness refuses to answer questions citing the fifth amendment privilege. The cases hold that the ruling is within the trial court‘s discretion. United States v. Seifert, 648 F.2d 557 (9th Cir. 1980); United States v. Star, 470 F.2d 1214 (9th Cir. 1972). See also United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. denied 375 U.S. 822 (1963). The testimony should be stricken if failure to answer deprives the party questioning the witness of the right to test the truth of the witness‘s direct testimony, as opposed to a collateral matter. United States v. Cardillo, supra.
Dr. Lynch‘s testimony was not beforе the jury. We find no error in the court‘s refusal to strike the testimony. The answers to the questions she was asked about her personal mental history
Reversed and remanded.
HICKMAN, J., concurs.
PURTLE and GLAZE, JJ., dissent in part.
DARRELL HICKMAN, Justice, concurring. I concur tо update the history of our review of capital cases contained in Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and Van Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring).
Since Fretwell, we have reviewed the imposition of the death sentence in thirteen cases. We have upheld the death penalty in seven cases: Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); O‘Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), petition for postconviction relief pending, Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, U.S., 108 S.Ct. 202 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987).
We also upheld the death penalty in the unusual case of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). Ronald Gene Simmons received the death penalty but waived his right to appeal his sentence. Franz attempted to bring an appeal as next friend. We determined Franz had no standing and affirmed Simmons’ competency to waive his appeal.
We have reversed and remanded the following cases in which the death penalty was imposed: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).
In Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), we found an error in the sentencing phase only. We vacated the
We also found error in the sentencing phase in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). We had previously upheld Pickens’ death sentence, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). But the Eighth Circuit reversed due to ineffective assistance of counsel. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). On retrial, Pickens received the death penalty again, but we found error and reversed.
None of the above cases have been presented on a second appeal, nor have Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982), and Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), which we reversed and remanded seven years agо. We reversed and remanded in Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), the first time it was before the court, but the case was affirmed on its second appeal. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986).
In the seven cases since Fretwell that have survived our review, six of the defendants are white and one is black. (Juries in these 13 cases imposed the death penalty on seven black men and six white men.)
During the period from May 12, 1986, to this date, we have reviewed 28 cases in which capital murder was the finding and the death penalty sought. The death penalty was imposed in 13 cases and life imprisonment without parole was imposed in the remaining 15.
Some cases are beginning to survive the gauntlet of the federal district court and the Eighth Circuit Court of Appeals. Habeas corpus relief has been denied in Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988); Hulsey v. Sargent, 821 F.2d 469 (8th Cir.), cert. denied, U.S. 108 S.Ct. 299 (1987), and Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). But some cases seem to just disappear into the federal judicial machinery. For instance, in 1980 we affirmed the conviction of Eddie Lee Miller. Miller filed a habeas petition in federal district court in 1981. Eight years have passed and there has been no ruling on the petition.
Habeas relief has been granted in Simmons v. Lockhart, 856 F.2d 1144 (8th Cir. 1988), and Singleton v. Lockhart, 653 F.Supp. 1114 (E.D. Ark. 1986).
Two cases merit special mention. In 1986 the U.S. Supreme Court vacated the Eighth Circuit‘s decisions in Ruiz and Van Denton v. Lockhart, 754 F.2d 254 (8th Cir. 1985), and Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985), vacated, 476 U.S. 1112 (1986). The Eighth Circuit had reasoned that death qualified juries are unconstitutional, but the Supreme Cоurt later held that they are not. See Lockhart v. McCree, 476 U.S. 162 (1986).
Nevertheless, after those decisions were vacated, the Eighth Circuit set aside the death sentences again, reasoning that it is unconstitutional to use pecuniary gain as an aggravating circumstance in a robbery-murder case (known as the “double counting” argument). Ruiz and Van Denton v. Lockhart, 806 F.2d 158 (8th Cir. 1986); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986). That was also the reasoning used to reduce the death sentеnce to life imprisonment in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985). But in the recent case of Lowenfield v. Phelps, U.S., 108 S.Ct. 546 (1988), the Supreme Court overruled the Eighth Circuit‘s position on the issue.
After thirteen years of court review, the death sentence still remains unexecuted. I have kept these figures for my own information as well as for anyone else interested in how the law of capital punishment fares. One safe conclusion can be made: there seems to bе no end to judicial review of these decisions.
ADDENDUM
In the following cases this court affirmed the appellants’ death sentences:
Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988). (Whitmore stabbed his victim, cut her throat and took a small amount of money from her house.)
Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). (Franz, as next friend, appealed the death sentence of Ronald Gene Simmons. Simmons killed twо people, wounded four and took one hostage during a shooting spree in Russellville.)
Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). (Gardner strangled a married couple and their daughter during the course of robbing their home.)
O‘Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), petition for postconviction relief pending. (O‘Rourke murdered his parents.)
Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, U.S., 108 S.Ct. 202 (1987). (Snell murdered a pawnshop owner in the course of a robbery.)
Hill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987). (Hill escaped from prison, took a family hоstage, and later killed a state trooper.)
The court found error in the sentencing phase in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988) (aggravating circumstance “especially heinous, atrocious or cruel” unconstitutionally vague), and in Pickens v. State, 292 Ark. 632, 730 S.W.2d 230 (1987) (evidence of the appellant‘s behavior subsequent to the crime should have been considered as a mitigating factor.)
The court has reversed the following death penalty cases, but they have not been presented again on appeal: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).
TOM GLAZE, Justice, dissenting in part. I respectfully dissent from the majority‘s holding that the trial court did not err in refusing to strike the testimony of Dr. Lynch after she asserted the fifth amendment. Dr. Lynch simply had no fifth amendment right to assert, yet the majority opinion allows a witness the right to refuse to testify even though that witness has no legal basis to do so.
Prior to trial, appellant‘s counsel obtained information that Dr. Lynch had suffered from psychiatric problems; thus, counsel requested the court to order Dr. Lynch to divulge her medical records which might reflect her professional competence and ability to testify. Both thе state and defense counsel agreed to an order to require Dr. Lynch to be deposed and for her to bring her medical records to the deposition. At the subsequent deposition, Dr. Lynch, invoking the fifth amendment, refused to provide her medical information. Appellant‘s counsel moved to have Dr. Lynch held in contempt, or in the alternative, to strike her prior testimоny concerning appellant‘s competency. Although the prosecutor stated that he had no objection to the striking of Dr. Lynch‘s testimony, the trial court still refused to grant the motion to strike or to hold Dr. Lynch in contempt.
Obviously, Dr. Lynch‘s testimony was an important part of
Clearly, the fifth amendment operates only where a witness is asked to incriminate himself—in other words, to give testimony which may possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422 (1956). Its [the fifth amendment‘s] sole concern is to afford protection against the danger to a witness of being forced to give testimony leading to the infliction of penalties affixed to criminal acts. Id.
Here, defense counsel was only seeking information concerning Dr. Lynch‘s prior medical history so as to impeach her testimony. In other words, the defense‘s quest for information had nothing to do with exposing Dr. Lynch to a criminal charge. In my view, the majority court‘s erroneous application of the fifth amendment has caused the court to reach an incorrect result, leaving the impression that the fifth amendment can be invoked to refuse to testify even in instances where the fifth amendment was never intended to apply. It is my opinion that a witness cannot justify his or her refusal to testify based upon the fifth amendment when he or she clearly has no grounds to assert that аmendment.
The issue here, which the majority chooses to ignore, is whether Dr. Lynch‘s medical records and history (which purportedly reveal a psychiatric disorder) are privileged. In Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984), the court of appeals, in accordance with Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), correctly held that the physician/patient privilege found in
PURTLE, J., joins this dissent.