DON WILLIAM DAVIS V. STATE OF ARKANSAS

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







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substance abuse, and “Antisocial Personality Disorder.” The report also detailed Davis’

history of learning disabilities, hyperactivity, troubled family history, and previous

stretches of incarceration.

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

1 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.







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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.”

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 co-counsel 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







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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

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







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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

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.







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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 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. § 5-2

305 (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







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(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 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.”







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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 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.