State v. Lacy , 480 S.W.3d 856 ( 2016 )

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SUPREME COURT OF ARKANSAS
No. CR-15-171
Opinion Delivered February 4, 2016
STATE OF ARKANSAS APPEAL FROM THE BENTON
APPELLANT/ COUNTY CIRCUIT COURT
CROSS-APPELLEE [NO. CR-2007-1550-1 (A)]
V. HONORABLE ROBIN F. GREEN,
JUDGE
BRANDON E. LACY
APPELLEE/ REVERSED AND REMANDED ON
CROSS-APPELLANT DIRECT APPEAL; AFFIRMED ON
CROSS-APPEAL.
RHONDA K. WOOD, Associate Justice
Brandon Lacy was convicted of capital murder and sentenced to death. We affirmed
on direct appeal. Lacy then filed a Rule 37.5 petition wherein he alleged ineffective
assistance of counsel. The circuit court granted Lacy a new sentencing hearing after finding
that defense counsel’s performance had been inadequate. The State has appealed from this
order. In addition, Lacy has cross-appealed from the circuit court’s denial of his claim for
relief based on counsel’s failure to present an affirmative defense of mental disease or defect.
On the direct appeal from the Rule 37.5 order, we reverse and remand because the circuit
court analyzed the case under a subjective legal standard; on the cross-appeal, we affirm.
Relevant Facts
Details of this case can be found in our opinion from Lacy’s direct appeal. See Lacy
v. State, 2010 Ark. 388, 377 S.W.3d 227. Briefly, Lacy was charged with capital murder.
Lacy admitted committing the crime with an accomplice. At trial, Lacy was represented by
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multiple lawyers, with Steve Harper as “lead counsel.” Harper conducted the sentencing
phase and was responsible for mitigation.
Harper knew that Lacy had a history of alcoholism and substance abuse; thus, he
arranged for Lacy to undergo psychological testing. Dr. Curtis Grundy, a psychologist,
examined Lacy twice. Dr. Grundy testified at a pretrial hearing that Lacy was competent to
stand trial. Dr. Robin Ross also conducted a forensic evaluation and concluded that Lacy
was competent to stand trial and did not have a mental disease or defect. Harper also
consulted with Dr. Robert Forrest; according to Harper, Dr. Forrest concluded that
additional psychological tests would not be “foolish” but ultimately would not be worth the
time or money.
The case proceeded to a jury trial. Lacy’s attorneys declined to present an affirmative
defense of mental disease or defect. The jury found Lacy guilty of capital murder and
aggravated robbery. At the sentencing phase, Harper presented a number of witnesses in
mitigation. These witnesses, who were Lacy’s family members, testified about Lacy’s difficult
and abusive childhood, as well as Lacy’s heavy drinking at a very early age. In addition,
Harper gave very brief opening and closing statements. No experts testified. After
deliberating, the jury sentenced Lacy to death.
Following the direct appeal, the circuit court held a hearing regarding Lacy’s
allegations of ineffective assistance of counsel.1 One contention was that Harper’s
performance during sentencing was deficient. Much of the focus at the Rule 37 hearing was
1
The circuit court initially dismissed the case without holding an evidentiary hearing.
We reversed and remanded because the record did not conclusively show that Lacy was
entitled to no relief. Lacy v. State, 2013 Ark. 34, 425 S.W.3d 746.
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on Harper’s closing argument to the jury at the end of the sentencing phase. His closing
argument was, by his own admission, “one of the worst I’ve ever given.” Harper would go
on to explain as follows:
By the time that portion of the trial came around, I’d had to adopt a lot of the burdens
of every portion of the trial and it was—it was a train wreck. By the time it came
around I was physically, mentally, emotionally exhausted. I was beat dead and I didn’t
give a good closing. . . . Could have been a lot better.
Lacy’s Rule 37.5 counsel also argued that Lacy was entitled to relief because his
attorneys at trial should have raised an affirmative defense of mental disease or defect. Lacy
presented testimony from two experts in support of this allegation. Dr. Jeffrey Gould, a
forensic psychiatrist, testified that Lacy suffered from alcohol-use disorder and depressive
disorder. Dr. Gould further testified that, had he been originally consulted in Lacy’s capital
murder case, he would have recommended that Lacy undergo a neuropsychological
evaluation.
Dr. Barry Crown, a psychologist, testified that he had conducted a
neuropsychological exam on Lacy. Dr. Crown specified, however, that his exam was “status
oriented” and was relevant only for the date that he examined Lacy, which was in December
2011. Dr. Crown concluded that Lacy had “significant neuro psychological impairment
impacting multiple functional areas.” Dr. Crown diagnosed Lacy with cognitive disorder
intellect, not otherwise specified. Specifically, Dr. Crown opined that Lacy had delayed
memory, impaired reasoning and judgment, and impaired language-based critical thinking.
To rebut Dr. Crown’s diagnosis, the State presented testimony from Dr. Richard
Price, a neuropsychologist. Dr. Price explained that Dr. Crown’s diagnosis of Lacy’s
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cognitive disorder was essentially a “mild neurocognitive disorder where there is some
documentation of . . . a brain injury.” Dr. Price testified that a person with this diagnosis
could still be high functioning. Further, Dr. Price testified that the diagnosis was based on a
self-reported brain injury rather than objective medical data, a fact that “weaken[s] that
opinion for sure.” Dr. Price also noted that Lacy had completed 60 hours of college credit
while in prison, suggesting a degree of intellectual skills.
The circuit court entered a written order granting Lacy a new sentencing hearing
based on Harper’s testimony that his performance had been inadequate. However, the court
denied Lacy relief on the basis that Harper should have presented a defense of mental disease
or defect. The State appeals from the first finding, and Lacy appeals from the second.
Relevant Law
We do not reverse the grant or denial of postconviction relief unless the circuit
court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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. Id.
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 (1984). Sartin
v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show
that counsel’s performance was deficient. Id. This requires a showing that counsel made
errors so serious that counsel deprived the petitioner of the counsel guaranteed to the
petitioner by the Sixth Amendment. Id. Second, the deficient performance must have
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resulted in prejudice so pronounced as to have deprived the petitioner a fair trial whose
outcome cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449
(1992).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, and the petitioner has the burden of overcoming that
presumption by identifying the acts and omissions of counsel which, when viewed from
counsel’s perspective at the time of trial, could not have been the result of reasonable
professional judgment. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. Even if counsel’s
conduct is shown to be deficient, the judgment will stand unless the petitioner demonstrates
that the error had a prejudicial effect on the actual outcome of the proceeding. Id. The
petitioner must show that there is a reasonable probability that, but for counsel’s errors, the
decision reached would have been different absent the errors. Id. A reasonable probability
is one that is sufficient to undermine confidence in the outcome of the trial. Id.
Direct Appeal
We address first the circuit court’s finding that Harper’s performance during the
sentencing phase was deficient. The circuit court granted Lacy a new sentencing hearing
based on “the testimony and actions of . . . Steve Harper.” Again, Harper testified that he
had been under significant stress and that his closing argument during the sentencing phase
was “one of the worst I’ve ever given.” Harper further testified that his mitigation case
“could have been a lot better.” There was also testimony at the Rule 37.5 hearing from
Didi Sallings, former executive director of the Public Defender Commission, and from Jay
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Saxton, Harper’s co-counsel. Both gave Harper’s performance mixed reviews: while they
were critical of Harper’s performance, they suggested that he was adequately prepared.
The circuit court erred because, when explaining its decision to grant a new hearing,
it referenced only Harper’s own assessment of his performance. A petitioner making a claim
for ineffective assistance of counsel must show that counsel’s performance fell below an
objective standard of reasonableness. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. We
have further noted that counsel should be “evaluated according to professional standards of
reasonableness, not by his own subjective assessment of his performance.” Howard v. State,
367 Ark. 18, 33, 238 S.W.3d 24, 36 (2006). Rather than applying an objective test, the
circuit court here applied a subjective one.
Both the State and Lacy acknowledge that the test is objective. Both also urge this
court to review the record and apply the objective test without remand. We decline to do
so: the circuit court is in a better position to apply the objective test. When a circuit court
applies the wrong standard in a petition for postconviction relief, this court has found it
necessary to reverse and remand for the correct standard to be applied. Misskelley v. State,
2010 Ark. 415; Baldwin v. State, 2010 Ark. 412 (remanding for the circuit court to apply
the correct legal standard in a petition for writ of habeas corpus). Therefore, we reverse and
remand. On remand, the court should use an objective legal standard when assessing
whether Lacy received effective representation.
In addition to the foregoing, the circuit court’s order on remand should comply with
Rule 37.5(i) of the Arkansas Rules of Criminal Procedure. That rule requires the circuit
court to make specific written findings with regard to each legal and factual issue raised by
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the petition. While the court’s order here discussed the facts, the order otherwise failed to
comply with this rule’s more “exacting requirements.” See Fudge v. State, 354 Ark. 148,
151, 120 S.W.3d 600, 602 (2008).
Cross-appeal
We next consider Lacy’s cross-appeal. Lacy argues that his trial counsel was deficient
for failing to present an affirmative defense of mental disease or defect; in the alternative,
Lacy argues that this failure entitles him to a new sentencing hearing. We affirm the circuit
court’s ruling that Lacy was not entitled to relief on this ground.
Under Arkansas Code Annotated section 5-2-312 (Repl. 2013), a defendant has an
affirmative defense if, at the time he engaged in the charged conduct, he lacked the capacity
to (1) conform his conduct to the requirements of the law or (2) appreciate the criminality
of his conduct. Before his trial, Lacy underwent at least two psychological evaluations. Both
experts, Dr. Grundy and Dr. Ross, opined that Lacy had no mental disease or defect and
was competent to stand trial. Another psychologist, Dr. Forrest, reviewed Lacy’s records
and concluded that further neuropsychological testing would yield little results.
Lacy also underwent psychological testing for the purposes of his Rule 37 hearing.
Like the experts who examined him before trial, none of these experts opined that Lacy was
incompetent to stand trial. Dr. Gould testified that Lacy suffered from alcohol-use disorder
and depressive disorder. And while Dr. Crown diagnosed Lacy with a cognitive disorder,
he never testified that Lacy would have been incompetent to stand trial. In any event, Dr.
Price criticized Dr. Crown’s methodology, pointing out that Dr. Crown had reviewed
limited records and that Lacy’s IQ score (106) and his completion of 60 hours of college
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credit undermined the severity of the diagnosis. The circuit court explicitly credited Dr.
Price’s testimony in its order denying Lacy relief on this ground: “According to Dr. Price,
though there is evidence of [Lacy’s] substance abuse, the records and date do not support a
diagnosis of brain damage, or any sort of neuropsychological disorder.”
There was also testimony regarding “memory confabulation.” It was undisputed that
Lacy was intoxicated when he committed the murder. Dr. Grundy testified that, as a result
of his intoxication, Lacy may have forgotten the events and filled them in with details
provided by someone else. Even so, Dr. Grundy noted in his report that Lacy could still
recall specific information from the night of the murder.
We cannot say that the circuit court’s ruling on this ground was clearly erroneous.
First, Harper conducted a thorough investigation into Lacy’s cognitive abilities, and at least
three psychologists failed to diagnose him with a mental disease or defect. Second, the one
doctor who did so diagnose had his methodology criticized by the State’s expert. The circuit
court gave more weight to this criticism in its order, which, as the fact finder, it was entitled
to do. See U.S. Fidelity & Guaranty Co. v. Park, 254 Ark. 129, 132, 491 S.W.2d 791, 793
(1973) (stating that “it is within the province of the factfinder to determine the value and
weight to be given to the testimony of experts”). Third, no expert ever testified that Lacy
was legally incompetent under section 5-2-312 or that Lacy in fact did not recall the murder.
For all the above reasons, counsel’s failure to present an affirmative defense of mental disease
or defect was not deficient performance.
Conclusion
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On direct appeal, we reverse the circuit court’s ruling that Lacy received ineffective
assistance of counsel based solely on his counsel’s testimony that his performance had been
inadequate. We remand the case to the circuit court, which should assess counsel’s
performance under an objective standard; the circuit court’s written order on remand should
also comply with the exacting requirements of Rule 37.5(i). On cross-appeal, we affirm the
circuit court’s denial of relief based on counsel’s failure to present an affirmative defense.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Leslie Rutledge, Att’y Gen., by: Pamela A. Rumpz, for appellant.
Benca & Benca, by: Patrick J. Benca, for appellee.
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