Charles Laverne Singleton v. Larry Norris, Director, Arkansas Department of Correction

Charles Laverne SINGLETON v. Larry NORRIS,
Director, Arkansas Department of Correction

CR 98-218                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 23, 1998


Criminal procedure -- death penalty -- question not previously decided -- 
     petition for rehearing of decision to stay denied. -- The supreme
     court, distinguishing three categorically different death-
     penalty cases, rejected the State's contention that, under the
     court's recent decision to stay appellant's execution pending
     resolution of his declaratory-judgment petition, stays of
     execution would now be warranted in the earlier cases; where
     the point raised in appellant's petition for a stay had not
     been addressed or decided in this or in any analogous case,
     the supreme court concluded that the issue presented was bona
     fide and not frivolous, the proceeding in circuit court was
     competent, and the question had to be resolved before any
     execution; under those unique facts, the stay had been
     granted; respondent's petition for rehearing was denied.


     Petition for Rehearing; denied.
     Jeff Rosenzweig, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., and Todd L. Newton, Asst. Att'y Gen., for appellee.

     Per Curiam.
     Respondent Larry Norris petitions for a rehearing of this
courtþs decision to stay the execution of Charles Laverne Singleton
pending resolution of his petition for a declaratory judgment and
all necessary writs to enforce that judgment.  Because the
execution scheduled for March 11, 1998, was in fact stayed by this
courtþs order, the issue is now moot.  We choose, however, to
address issues of significant public interest raised in the
rehearing petition that may well reoccur in the future.  See Wilson
v. Pulaski Assþn of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Thomas v. Board of Correction and Community Punishment,
324 Ark. 6, 918 S.W.2d 156 (1996).
     Contrary to Norrisþs assertion, we consider this case to be
categorically different from the cases of Pickens v. Tucker, 316
Ark. 811, 875 S.W.2d 835 (1994), Fairchild v. Norris, 314 Ark. 221,
861 S.W.2d 111 (1993), and Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992).  In those cases, the issue raised was either not
apposite to the Singleton facts or had already been decided.  In
Pickens, the point at issue solely related to executive clemency
and whether the governor, who had represented the State as attorney
general in Pickensþs appeal, was impartial.  The period of time
following our decision was sufficient for a clemency decision by
the chief executive prior to the execution date.  In Fairchild, we
concluded that the federal district court had adequately addressed
and decided the mental retardation issue, using the same definition
employed in Act 420 of 1993.  In Rector, we said that we could not
disagree with the circuit courtþs finding that there had been no
change in Rectorþs mental condition since his evaluation by federal
authorities in 1989.  Thus, we found no violation of the standard
set in Ford v. Wainright, 477 U.S. 399 (1986).
     We discount the Stateþs position that under our Singleton
decision, stays of execution would now be warranted in those cases. 
Here, the point raised in Singletonþs petition for a stay was: Can
the State forcibly medicate him for a legitimate reason when a side
effect of that medication is to render him legally sane for
purposes of execution?  That question had not been addressed or
decided in this case or in any analogous case.  We concluded that
the issue presented was bona fide and not frivolous, and, thus, the
proceeding in circuit court was þcompetent.þ  See Ark. Code Ann.
16-90-506(a)(1) (Supp. 1997).  We also concluded that the question
had to be resolved prefatory to any execution.  Under those unique
facts, the stay was granted.
     Petition denied.
     Arnold, C.J., and Glaze and Corbin, JJ., dissent.

     Tom Glaze, Justice, dissenting.  The Attorney General correctly
points out that the majority opinion staying Mr. Singleton's
execution is contrary to three of this court's earlier cases where
the court denied stays.  See Pickens v. State, 316 Ark. 811, 875 S.W.2d 835 (1994) (court denied stay where Pickens raised
constitutional issue asserted to be pending before the U. S.
Supreme Court);  Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111
(1993) (court denied stay where Fairchild argued a constitutional
claim of first impression concerning his incompetence to be
executed; court held Fairchild was barred by doctrine of collateral
estoppel from reasserting his mental retardation); and Rector v.
Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992) (court denied stay
where Rector raised new issue pertaining to constitutionality of
Ark. Code Ann.  16-90-506(d)(1) (1987), and decision denying stay
rested also on the fact that his mental condition had not changed
since federal authorities previously found he was aware of the
punishment about to be inflicted upon him).  In each of the three
prior cases -- like Singleton -- the petitioner requested a stay of
execution, and argued a last-minute constitutional issue of first
impression.  Only in Singleton's case did this court grant a stay,
holding a "competent judicial proceeding" under  16-90-506(a)(1)
should be conducted because a "constitutional issue of first
impression" was "ripe" for decision.
     The Attorney General's point is that death-row inmates have
commonly raised last-minute constitutional issues of first
impression, but, until now, have been rejected.  Section 16-90-506
relied upon in the majority opinion is clear that the General
Assembly intended stays of execution to be strictly limited by
granting a reprieve to be given by the Governor, the Arkansas
Supreme Court via a writ of error, or by any competent judicial
proceeding.  Here, the Governor had issued no reprieve, nor had
this court issued a writ of error.  Instead, this court has
engrafted an expansive meaning to the words "any competent judicial
proceeding" which will permit attorneys for inmates to frame
constitutional issues that will compel stays.  If the court would
have taken the view it takes now of  16-90-506, Pickens,
Fairchild, and Rector would likely still be in court presenting
legal arguments for their release.  As this court stated in
Rector v. State, "[E]ven death cases must come to an end."  Death
sentence cases are always difficult to decide, but this case is no
more unique or different than Rector's, except this case has been
in the court system longer -- twenty years.  I agree with the
Attorney General's position and would deny any further stay.