Ricky Glenn Steward v. State of Arkansas
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Ricky Glenn STEWARD v. STATE of Arkansas
CACR05-221
___ S.W.3d ___
Court of Appeals of Arkansas
Opinion delivered March 22, 2006
1.
C RIMINAL PROCEDURE – THE TRIAL COURT’S REASONS FOR RESTRAINING APPELLANT
WERE SUPPORTED BY THE RECORD
– The trial court did not abuse its discretion in
ordering that appellant be restrained during the proceedings, and it properly instructed
the jury to disregard the fact that appellant had on leg chains and to give that fact no
consideration during its deliberations as to appellant’s guilt or innocence, where
appellant was charged with having committed violent offenses and was clearly prone
to fleeing from authorities, and there was testimony that it took several officers to
remove appellant from his vehicle, that it was not easy to subdue appellant even with
the use of mace, and that appellant kicked a patrol car’s door so hard that it bowed;
furthermore, appellant could not show that prejudice resulted from the trial court’s use
of restraints because the jury convicted him of lesser-included offenses, found him not
guilty of any offense related to one officer, and could not agree on what sentence he
should receive.
2.
C RIMINAL LAW – APPELLANT WAS COMPETENT TO STAND TRIAL – ANY FURTHER
MENTAL- HEALTH EVALUATIONS WERE PURELY DISCRETIONARY WITH THE TRIAL
COURT.–
The trial court did not abuse its discretion in refusing to suspend the
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proceedings against appellant on August 2, 2004, to ascertain whether appellant was
competent to stand trial, where, on June 20, 2003, the trial court had properly
suspended proceedings against appellant and ordered that appellant undergo a mentalhealth evaluation upon defense counsel’s motion in accordance with Ark. Code Ann.
§ 5-2-305, and, where according to the forensic report of appellant’s examination on
January 23, 2004, Dr. Mallory and Dr. Dowless noted that appellant had the capacity
to understand the proceedings against him and the capacity to assist effectively in his
own defense, which is the linchpin of Ark. Code Ann. § 5-2-302(a), and where, once
appellant’s fitness to proceed was restored, the prosecution commenced in accordance
with Ark. Code Ann. § 5-2-310; the trial court followed the dictates of the statutes to
the letter, and any further mental-health evaluations were purely discretionary with
the trial court.
Appeal from Jackson Circuit Court; Harold Erwin, Judge; affirmed.
Ronald L. Davis, Jr., Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.
Mike Beebe, Att’y Gen., by: Nicana Corinne Sherman, Ass’t Att’y Gen., for appellee.
R OBERT J. G LADWIN, Judge.
Appellant Ricky Glenn Steward was charged with four counts of attempted capital
murder and one count of attempted first-degree murder, stemming from events that occurred
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on June 1, 2003, involving five police officers from the Jackson County Sheriff’s Department.
A Jackson County jury found appellant guilty of one count of attempted second-degree
murder and three counts of aggravated assault and found him not guilty of all charges related
to one particular officer. Following the jury’s verdict, the trial court sentenced him to serve
twenty-five years at the Arkansas Department of Correction. Appellant raises two points on
appeal: (1) the trial court erred in granting the State’s motion to restrain him in the presence
of the jury during trial; and (2) the trial court erred in denying his motion to suspend the
proceedings to determine whether he was competent to stand trial. We affirm.
On June 20, 2003, the Jackson County Circuit Court ordered that appellant undergo
a mental-health evaluation upon defense counsel’s motion.
Dr. William Cochran, a
psychologist at the North Arkansas Human Services System in Kensett, interviewed appellant.
In appellant’s history, it was noted that Dr. Cochran had previously evaluated him on April
16, 2002, and had opined at that time that he was competent to stand trial on charges
unrelated to the current charges and was able to appreciate the criminality of his actions and
to conform his behavior to the requirements of the law. Based on appellant’s most recent
examination, Dr. Cochran determined that appellant demonstrated a fully-developed,
persecutory-type delusion, and Dr. Cochran opined that appellant was not currently
competent to stand trial. On September 12, 2003, the trial court entered a not-fit-to-proceed
commitment order. The trial court found that, pursuant to Ark. Code Ann. § 5-2-310, the
proceedings would be suspended and that appellant would be committed to the custody of
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the Director of the Department of Human Services for detention, care, and treatment until
restoration of fitness to proceed. The Department was ordered to report back within ten
months.
On September 23, 2003, appellant was admitted to the Arkansas State Hospital (ASH)
for treatment, and a forensic report was filed on February 17, 2004. In an initial interview,
Dr. Charles H. Mallory, a staff psychologist, found him “unresponsive and preoccupied with
military protocol and an apparent active delusion in which he perceived the ASH staff as
involved in his military detention ....” Over the course of his treatment, appellant told the
staff that in the early 1990s he began to understand that the county judge and the Newport
police were corrupt and that it was his duty to correct the situation. On October 17, 2003,
appellant was “discovered crawling on his belly in front of the nurses’ station, and had a razor
in his hand, saying that his mission was to ‘take out everybody’ on Gunny’s orders.”
Appellant had been taking Haldol and Zyprexa for approximately four months at the time of
examination on January 23, 2004. In the forensic report, Dr. Mallory and Dr. Kenneth
Dowless, a forensic staff psychiatrist, noted that appellant had improved from his previously
diagnosed condition. The doctors reported that, at the time of the examination, appellant had
mental disease but not mental defect and that he had the capacity to understand the
proceedings against him and the capacity to assist effectively in his own defense. They
concluded, “It is unlikely that his mental condition will deteriorate due to the stress of
awaiting trial or the stress of trial itself, as long as he can be maintained on his current regimen of
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medications.” (Emphasis in original.) The doctors also opined that, at the time of the alleged
offenses, appellant did not lack the capacity to appreciate the criminality of his conduct but
that, due to mental disease, he lacked the capacity to conform his conduct to the requirements
of the law.
A competency hearing was held on June 21, 2004, at the conclusion of which, the trial
court stated that “the defendant does not fit under the McNaughton rule at the time of the
event, that it is a fact question, will be a fact question for the jury.” Appellant does not
challenge any aspect of that proceeding.
Appellant’s trial was scheduled for August 2, 2004. On July 22, 2004, the State filed
a motion to require that appellant be restrained during the proceedings. A hearing on the
State’s motion to restrain was held on August 2, 2004, and the trial court heard testimony
regarding charges that arose from events that occurred in 1997 and in 2001 and testimony
relating to the current charges stemming from events that occurred on June 1, 2003.
Events on November 27, 1997
The evidence showed that on November 27, 1997, Newport Police Officer Wade
Honey was standing at the back door of the police department when he saw a white car going
the wrong way on Second Street, which runs between the sheriff’s office and the police
department. The car’s headlights were not on, and it was traveling at approximately eighty
miles per hour. Honey began the pursuit, and Creston Hutton with the Arkansas State Police
was called to assist. Hutton attempted to block the road using his police vehicle. Instead of
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stopping, appellant rammed his vehicle into the rear of Hutton’s car. In continuing the
pursuit, appellant narrowly avoided a head-on collision with Sheriff Jim Bishop’s car. At
another point during the pursuit, Honey pulled in front of appellant’s stopped car, and Hutton
attempted to block it by pulling in behind him. Appellant backed up his car and rammed it
into the front of Hutton’s car, and then drove forward, hitting Honey’s car, before he fled
again. Honey fired one round into the rear bumper of appellant’s car. At the Waldenburg
city limits, appellant slammed on his brakes and then backed up and almost hit Lieutenant
Michael Scudder’s car. Honey forced appellant’s vehicle into a ditch, where it became stuck
in the mud. According to Honey, appellant “held the accelerator wide open till the engine
blew up.”
Officers then attempted to get appellant out of the vehicle. Appellant put his arms up
through the steering wheel and refused to let go. Honey climbed into the front seat while
another officer struggled from the other side to force appellant’s arms back through the
steering wheel. Finally, they got him loose, and the other officer dragged appellant out
through the car’s window. Scudder recalled that appellant spit on an officer. Appellant was
pepper sprayed, and it took several officers to get him out of his car and handcuffed.
Scudder testified that he had not seen appellant cause any trouble inside a courtroom
but that he recalled a disruption getting appellant to go inside the courthouse after leaving the
jail. Scudder also recalled that, when appellant was being taken back to the jail, the deputy
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he was following had to pull over because appellant had kicked the door so hard that it
bowed. The officers put a different restraint on him so that he could no longer kick the door.
Events on July 11, 2001
Patrolman Michael Calendar with the Newport Police Department testified that on
July 11, 2001, he saw a suspicious van in a residential neighborhood. He said that the van
pulled over and let him pass every time he attempted to run the tags on it. He said he noticed
the van following him. He turned around to return to the neighborhood, and the van turned
around as well. Calendar finally got an opportunity to run the tags, and he learned that the
van belonged to appellant out of North Carolina. Calendar was instructed by another officer
to stop the vehicle in order to find out whether the driver was lost. Calendar activated his
lights, but appellant continued to drive. Patrolman Mike Wilson joined the pursuit, and
Calendar activated his siren. Lieutenant David Ervin also joined the pursuit. Two officers
from the Diaz Police Department, who had been called to assist, attempted to block
appellant’s van. As Diaz Sergeant Charles Moss was exiting his car, the van slowed, then
accelerated suddenly, and hit the Diaz patrol car, disabling both cars. Diaz Officer Dale
Jackson testified that appellant exited his vehicle and began ranting that the officers had hit
his van. Appellant kept coming toward the officers, even though they had instructed him to
get on the ground, and Jackson even drew his weapon at one point. When the other units
arrived, appellant fled on foot.
Scudder encountered appellant running in his direction. Scudder attempted to block
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appellant’s path with his car. Appellant went over the hood, fell to the ground, and then got
up and continued to run. Eventually, the officers decided to stop pursuing appellant, and so
they returned to the scene of the accident. Appellant returned to the scene as well and yelled
and cursed at the officers.
When the officers attempted to chase him, he fled again.
According to Scudder, appellant called 911 from every payphone between the scene of the
accident and the police department. Scudder said that appellant was sitting in front of the
police department the following morning but would not let the officers get close.
Events on June 1, 2003
Sergeant James Brock with the Jackson County Sheriff’s Department testified regarding
the incident that occurred on June 1, 2003, that led to appellant’s current charges. Brock and
Deputy Toni Moss were dispatched to appellant’s residence in reference to “unknown
trouble.” A child opened the door to the residence, and Brock saw appellant sitting in a chair
across the room. Appellant appeared to be calm and assured the officers that everything was
all right. The officers left the residence, but within five or ten minutes, they were summoned
back to the residence. Brock, Moss, Tammy Selvidge, a reserve deputy in training, Deputy
Chuck Benish, and Sergeant Mike Miller responded. As they arrived at his residence,
appellant fired several shots at them, and one of the bullets hit Moss in the leg. Appellant then
fled the scene and remained at large for three days.
Following the hearing on the State’s motion to restrain appellant during the
proceedings, appellant gave the trial judge his word as a United States Marine that he would
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not disrupt the proceedings. The trial court did not specifically rule on the State’s motion at
that point in time.
Before the trial proceedings began on the following day, defense counsel requested a
bench conference. Defense counsel informed the trial court that appellant said he was hearing
voices and suggested that the court allow appellant to speak to one of the doctors present at
the proceedings. The trial judge responded, “Well, I’ve done that once.”
The trial proceedings resumed, and some time later, defense counsel asked for another
bench conference. Defense counsel again advised the trial court that appellant said he was
hearing voices. Specifically, appellant was having conversations with “Gunny” who informed
him that he had a right to be tried in military court. At that point, the trial judge ruled that
appellant would be restrained during the trial, but he gave the jury a limiting instruction. In
his ruling, the trial judge stated:
All right, the Court will make a record that he is not shackled but he has leg chains on
and the reason is that the prior actions of the defendant, how strong he is, and
unresponsive he is, I’m afraid to get him around the jury but I have kept his leg chains
on. With the strength of the defendant and his prior actions with the police officers
indicate to me that he should be in chains and the fact that he has run before from
police. I’ll give them a limiting instruction at the correct time. I think I’m required
to as a matter of fact. I’ll tell them that now.
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At a third bench conference, defense counsel told the court that appellant was still
communicating with his gunnery sergeant and that his competency to stand trial was being
called into question again. The trial court refused to order an additional mental evaluation.
Toward the end of appellant’s case in chief, defense counsel informed the trial court
that appellant wished to testify against counsel’s advice. The following colloquy occurred
between the trial court and appellant:
APPELLANT:
Sir, as a United States Marine, my staff non-commissioned
officer, Gunny Sergeant Williams, has authorized me to testify
before you at this time, Sir.
THE COURT:
Well, what does that mean, Mr. Steward?
APPELLANT:
It means my Gunny told me to get up there and tell the truth.
THE COURT:
Do you wish to testify?
APPELLANT:
Yes, sir.
THE COURT:
Do you understand you have the right not to testify?
APPELLANT:
As it stands right now, my Gunny told me to testify, I will
testify, Sir.
THE COURT:
And you understand that your Gunny Sergeant is not your
lawyer and he is not skilled like your lawyer is.
APPELLANT:
I’ve been in the marines fourteen years, he hadn’t steered me
wrong yet, Sir.
THE COURT:
Well, step around here and get on the stand.
Appellant testified that the police had been harassing him since 1997. He stated that
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he believed the officers who arrived at his residence on June 1, 2003, were there to kill him.
In fact, he heard one of the officers say, “Let’s kill him this time.” Appellant stated that he
was under orders from “Gunny” to fire at the officers so that they would leave him alone.
He insisted, however, that he was not trying to kill the officers. He said he was an expert
with the M-16 A2 service rifle and could have shot and killed the officers if he had wanted
to do so. Appellant testified that “Gunny” was real and that the Marine Corps had sent
“Gunny” to assist him in his secret mission to liberate Newport. Appellant stated that at the
state hospital, which he referred to as an interrogation camp, doctors had diagnosed mental
disease or defect. He insisted, however, that he did not have a problem. Concerning his
secret mission, appellant testified that he had collected information about key officials in
Newport and was sending the information to the Department of Justice in Washington, D.C.
On cross-examination by the prosecutor, appellant stated, “Sir, it is my duty to let you
know that I am a prisoner of war. Under the Prisoner of War Act of the Geneva Commission
(sic), the only thing I can be allowed to give you is my name, rank, and serial number. I
cannot be interrogated.” The prosecutor responded, “You can’t even acknowledge if you
know who I am?” Appellant answered, “Steward, Staff Sergeant, 43143704.”
Following deliberations, the jury convicted appellant of attempted second-degree
murder against Moss and three counts of aggravated assault against Selvidge, Brock, and
Miller. The jury found appellant not guilty of all charges that pertained to Benish. Because
the jury was unable to arrive at a decision on appellant’s sentence for the offenses, the trial
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court sentenced him to serve twenty-five years at the Arkansas Department of Correction.
On appeal to this court, appellant first argues that the trial court erred in granting the
State’s motion to require him to be restrained during the proceedings. Arkansas Rule of
Criminal Procedure 33.4 provides the following:
Defendants and witnesses shall not be subjected to physical restraint while in court
unless the trial judge has found such restraint reasonably necessary to maintain order.
If the trial judge orders such restraint, he shall enter into the record of the case the
reasons therefor. Whenever physical restraint of a defendant or witness occurs in the
presence of jurors trying the case, the judge shall upon request of the defendant or his
attorney instruct the jury that such restraint is not to be considered in assessing the
proof and determining guilt.
It is not prejudicial per se when the defendant is brought into a courtroom handcuffed or legcuffed. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). Almost without exception,
our prior decisions that have upheld the use of restraints have involved defendants charged
with violent offenses or who have engaged in disruptive behavior, or attempted escape. Id.
The trial court has discretion to use physical restraints on a defendant for security purposes and
to maintain order in the courtroom. Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186
(1993). Moreover, the trial judge is in a better position to evaluate the potential security risks
involved. Id. We will not presume prejudice when there is nothing in the record to indicate
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what impression may have been made on the jurors and when appellant has offered no proof
of prejudice. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
Appellant argues that the record does not support the trial court’s reasons for
restraining him. He further argues that the State’s witnesses conceded that he had never been
disruptive in a courtroom before and that he was quiet during the proceedings. The record
does indeed support the reasons stated by the trial court. Appellant was charged with having
committed violent offenses and was clearly prone to fleeing from authorities. Scudder testified
that it took several officers to remove appellant from his vehicle and get him handcuffed and
that it was not easy to subdue appellant even with the use of mace. Scudder also testified that
appellant kicked a patrol car’s door so hard that it bowed. Under these circumstances, we
cannot say that the trial court abused its discretion in ordering that appellant be restrained
during the proceedings. Moreover, the trial court properly instructed the jury to disregard
the fact that appellant had on leg chains and to give that fact no consideration during its
deliberations as to appellant’s guilt or innocence. Furthermore, appellant cannot show that
prejudice resulted from the trial court’s use of restraints because the jury convicted him of
lesser-included offenses, found him not guilty of any offense related to one officer, and could
not agree on what sentence he should receive.
Next, appellant argues that the trial court erred in refusing to suspend the proceedings
to ascertain whether he was competent to stand trial. Arkansas Code Annotated section 5-2302 provides that no person who, as a result of mental disease or defect, lacks capacity to
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understand the proceedings against him or her or to assist effectively in his or her own defense
shall be tried, convicted, or sentenced for the commission of an offense so long as such
incapacity endures. If the court determines that the defendant lacks fitness to proceed, the
proceeding against him shall be suspended. Ark. Code Ann. § 5-2-310(a). If the court,
pursuant to the report of the Director of the Department of Human Services, or as a result
of a hearing on the report, determines that the defendant is fit to proceed, prosecution in
ordinary course may commence. Ark. Code Ann. § 5-2-310(b)(2)(B).
When an accused raises the defense of mental disease or defect or places his or her
competency in issue, the trial court must follow the procedures for evaluation set out in Ark.
Code Ann. § 5-2-305. An evaluation performed under that section does not ordinarily
require a second opinion, and further evaluation is discretionary with the trial court. Dyer v.
State, 343 Ark. 422, 36 S.W.3d 724 (2001).
The law is well settled that a criminal defendant is presumed to be mentally competent
to stand trial, and the burden of proving incompetence is on that defendant. Key v. State, 325
Ark. 73, 923 S.W.2d 865 (1996). The test for determining an accused’s competency to stand
trial is whether he is aware of the nature of the proceedings against him and is capable of
cooperating effectively with his attorney in the preparation of his defense. Id. On appellate
review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support
the trial court’s finding. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).
Appellant argues that two psychologists and a psychiatrist diagnosed mental disease and
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defect and that Dr. Mallory and Dr. Dowless determined that he was unable to conform his
conduct to the requirements of the law relative to incidents that occurred in 1997 and 2001.
Appellant concedes that the trial court conducted a hearing on his competency but asserts that,
“however, unlike a determination of ones (sic) capacity to conform his conduct with the
requirements of the law at a particular time, the issue of whether the appellant was fit to
proceed should always be considered, irrespective of any prior considerations of the same.”
He argues that, because his counsel made the trial court aware that he (appellant) was hearing
voices during the course of the trial, there was clearly sufficient reason to doubt his fitness to
proceed pursuant to Ark. Code Ann. § 5-2-305(D).
According to Dr. Mallory and Dr. Dowless, appellant did not lack the capacity to
understand the proceedings against him and to assist effectively in his own defense, which is
the linchpin of Ark. Code Ann. § 5-2-302(a). The trial court properly suspended the
proceedings and ordered that appellant undergo a mental-health evaluation upon defense
counsel’s motion in accordance with Ark. Code Ann. § 5-2-305. Once his fitness to proceed
was restored, the prosecution commenced in accordance with Ark. Code Ann. § 5-2-310.
Here, the trial court followed the dictates of the statutes to the letter, and any further mentalhealth evaluations were purely discretionary with the trial court. There was no evidence, and
appellant has not so much as suggested, that he was not receiving the regimen of medications
prescribed to treat his mental condition. The trial court was in a better position to judge
whether an additional mental-health evaluation was warranted based on appellant’s alleged
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hearing of voices. Under these circumstances, we cannot say that the trial court abused its
discretion.
Affirmed.
V AUGHT, C RABTREE, and B AKER, JJ., agree.
R OBBINS and G RIFFEN, JJ., dissent.
JOHN B. R OBBINS, Judge, dissenting. It should be an extraordinary circumstance to
require a defendant to be shackled with leg chains throughout a trial and in full view of his
jury. However, I agree with the majority that such a situation existed during Steward’s trial.
The trial court was of the opinion that Steward posed a serious risk to the safety of the jury
and court personnel, and there was ample evidence to support such an opinion. Steward had
been diagnosed by Dr. Charles H. Mallory and Dr. Kenneth Dowless, forensic staff
psychologists with the Arkansas State Hospital, as suffering schizophrenia, paranoid type,
continuous, and the majority opinion summarizes some of the bizarre behavior of Steward
within recent years. Consequently, on this issue I concur with the majority’s decision to
affirm.
It is with the second issue that I disagree with today’s decision. Steward contends that
the court erred in refusing to suspend the trial proceeding to ascertain whether he was
competent to stand trial. For the following reasons I agree with Steward’s contention.
Steward’s jury trial was conducted on August 2, 2004. At this time other charges were
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pending against him. More than one year earlier, on June 17, 2003, the trial court ordered
a mental evaluation prior to trial on one of these other charges. Dr. William Cochran, a
licensed psychologist with the North Arkansas Human Services System, conducted an
evaluation in which he found that Steward was delusional with paranoid ideation and
concluded with an opinion that Steward was not competent to stand trial. Consequently, all
criminal prosecutions against Steward were suspended and he was committed to the custody
of the Director of the Department of Human Services for inpatient detention, care and
treatment until restoration of fitness to proceed.
On February 17, 2004, a report pertaining to Steward was filed with the trial court
from Dr. Charles Mallory and Dr. Kenneth Dowless. The report was based upon Steward’s
court, police and psychological history, and interviews with Steward held on September 23,
2003, and January 23, 2004. Two significant points relevant to this appeal were presented in
this report. First, Dr. Mallory expressed his opinion that at the time of the alleged criminal
offenses, due to mental disease, Steward lacked the capacity to conform his conduct to the
requirements of the law. Secondly, Dr. Mallory opined that Steward was now competent to
proceed to trial and “it is unlikely that his mental condition will deteriorate due to the stress
of awaiting trial or the stress of trial itself, as long as he can be maintained on his current regimen
of medications.”
Following receipt of this report, which was also signed by Dr. Kenneth Dowless, a
hearing was held on June 21, 2004. The hearing is significant, not so much as to what was
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decided, but what was not. At the conclusion of the hearing the trial court stated:
[T]he Court rules that the defendant does not fit under the McNaughton rule at the
time of the event, that it is a fact question, will be a fact question for the jury.
Clearly, because of the court’s reference to the McNaughton rule, the issue was whether
Steward lacked the capacity to conform his conduct to the requirements of the law at the time
of the alleged criminal conduct. The court did not address Steward’s competency to proceed
to trial.
Although no ruling had been made regarding Steward’s fitness to proceed since
summer of 2003 when the court found him not competent to proceed to trial, a jury trial was
held on August 2, 2004. Three times during the trial Steward’s attorney brought to the
attention of the trial judge that Steward indicated that he was having continuing conversations
with “Gunny,” Steward’s gunnery sergeant, apparently from when Steward was serving in
active duty with the United States Marines. These three colloquies include the following
statements:
First colloquy Defense Counsel: Judge, my client tells me, I just talked to him, he’s hearing voices
and I bring that to the Court’s attention because I think I’m duty bound to do it. I’m
not sure what I’m asking other than to advise the Court.
....
But because we had this issue, I think the law requires me to advise the Court and the
Court makes a determination that he needs some clarification that he talk to one of the
doctors, one of them is here.
The Court: Well, I’ve done that once.
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Second colloquy Defense Counsel: Judge, again for purposes of the record, on each session when we
break or anything, I always try to talk to Mr. Steward and I did in this instance talk to
Mr. Steward to see if I’m confident about his mental state, and just to bring to the
Court’s attention again that he continues to say that he’s having conversations with
Gunny and in particular last night about him having the right to be tried in a military
Court.
The Court: All right, the Court will make a record that he is not shackled but he has
leg chains on and the reason is that the prior actions of the defendant, how strong he
is, and unresponsive he is, I’m afraid to get him around the jury but I have kept his leg
chains on.
Third colloquyDefense Counsel: I make my record again that as I indicated to the Court on several
occasions during the course of this trial, Mr. Steward has indicated and without giving
privileged information that he is still communicating with his gunnery sergeant, and
I think thus call into question his competency to stand trial in this matter; that, I think
the rule of law is clear that at any point in time that the court becomes aware or that
the competency of the defendant to proceed to trial is brought into question that the
court has an obligation to make a finding with regards to whether or not there needs
to be any additional evaluation on the subject.
....
The Court: The objection is overruled.
It is not clear as to when “that once” occurred, which the trial court mentioned during
the first colloquy. At this point, Steward had been examined and reports had been made
twice. The first was in June 2003 and resulted in the trial court finding Steward not
competent to proceed to trial. The second examination and report was the one dated
February 17, 2004, which was the subject of the June 2004 hearing and concluded with the
trial court holding that Steward’s mental capacity at the time of the alleged offense would be
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a factual issue for the jury. No ruling was pronounced at that hearing pertaining to Steward’s
competence or fitness to proceed to trial.
Arkansas Code Annotated section 5-2-305 (a)(1) (Repl. 2005) provides in pertinent
part:
[T]he court shall immediately suspend any further proceedings in a prosecution if:
....
(D) There is reason to doubt the defendant’s fitness to proceed.
The supreme court has defined the test of competency to stand trial as “whether a defendant
has sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational, as well as factual, understanding of the
proceedings against him.” (emphasis added) Haynes v. State, 346 Ark. 388, 392, 58 S.W.3d
336, 339 (2001); and see Thessing v. State, __Ark.__, __S.W.3d__ (March 2, 2006). Granted,
here the trial court had complied with this mandate more than a year before Steward was
eventually tried. That suspension resulted in a determination that Steward was not competent
to proceed to trial. Steward was committed to the state hospital for treatment. He was placed
on a regimen of medication and by January 2004 he had improved to a level that staff
psychologists opined that he was competent to be tried, provided he continued to “be
maintained on his current regimen of medications.”
As noted by the majority, an evaluation once performed pursuant to Ark. Code Ann.
§ 5-2-305 does not ordinarily require a second opinion, and our supreme court has held that
STEWARD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 21
further evaluation is discretionary with the trial court. See Dyer v. State, 343 Ark. 422, 36
S.W.3d 724 (2001); Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). While an
evaluation based upon interviews with a defendant within the past few days or perhaps few
weeks might shed light on whether the defendant has sufficient present ability to assist his
counsel in his defense, it is indefensible to consider an evaluation based on interviews more
than six months earlier as relevant for this purpose under the circumstances of this case. I
submit that the trial court should have suspended the trial, at least until Steward could be
examined, when it was brought to the court’s attention that Steward was hearing voices,
especially when Steward stated that he would testify because Gunny was telling him to do so.1
Clearly, Steward’s delusion of hearing instructions from “Gunny” directing him to act
contrary to his attorney’s recommendations interfered with his ability to consult with his
lawyer.
The six-month lapse of time since Steward was last evaluated by a psychologist, the fact
that the opinion of the psychologists who performed that evaluation conditioned Steward’s
competency on maintenance of his medicinal regimen, and the delusions of Gunny’s
directions during trial should have triggered application of Ark. Code Ann. § 5-2-305 and its
requirement for an evaluation. This is not an instance of doctor shopping that the supreme
1
The prosecution attempted to cross-examine Steward following his direct
examination. Steward would only respond by stating his name, military rank and serial
number. The fact that the State did not object and/or seek contempt sanctions at this
juncture is some indication of the State’s opinion of Steward’s competency.
STEWARD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 22
court discouraged in Dirickson, supra, or a case where there was no history of mental illness as
in Dyer, supra. The trial was so far removed from the previous evaluation that the issue of
competency to proceed and a mental evaluation should not be considered discretionary, but
rather mandatory pursuant to section 5-2-305. However, even if discretionary, the trial court
either failed to exercise his discretion, or if exercised, abused that discretion by failing to have
Steward evaluated.
I would reverse and remand for further proceedings, including a current competency
evaluation before a new trial.
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