Dunn v. State

2019 Ark. App. 398

585 S.W.3d 681

John DUNN, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-524

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: September 18, 2019

Rehearing Denied October 30, 2019

Misty A. Grady, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

WAYMOND M. BROWN, Judge

Appellant John Dunn was found guilty of simultaneous possession of drugs and firearms, criminal attempt to manufacture methamphetamine, use or possession of paraphernalia to manufacture methamphetamine, and possession of a controlled substance (methamphetamine) by a Clark County Circuit Court jury. He was sentenced to an aggregate term of forty years' imprisonment. He argues on appeal that the trial court erred and abused its discretion in (1) finding that appellant had made an effective waiver of his right to counsel and could proceed pro se and (2) finding that appellant was competent to conduct trial proceedings pro se. We affirm.¹

Appellant was arrested on July 9, 2014, and charged with simultaneous possession of drugs and firearms, criminal attempt to manufacture methamphetamine, use or possession of paraphernalia to manufacture methamphetamine, and possession of a controlled substance (methamphetamine). Appellant's omnibus hearing took place on October 14, before Judge Robert McCallum. At that time, Timothy Beckham, appellant's appointed attorney, informed the court that he anticipated filing a motion for mental evaluation of appellant in terms of appellant's fitness to proceed. The motion was filed the same day. An order for a criminal-responsibility examination was filed on October 20. A forensic evaluation by Dr. Paul Deyoub took place on January 21, 2015. Dr. Deyoub submitted his findings to the court on April 2, in which he found that appellant suffers from personality disorder not otherwise specified (301.9) and schizoaffective disorder, bipolar type with delusions (295.70). Dr. Deyoub opined that appellant was unfit to proceed because he was a danger to himself and others and should be committed to the Arkansas State Hospital for treatment and restoration to competency. The court entered a not-fit-to-proceed commitment order on April 14.

On December 22, appellant filed a motion to remove Beckham as his counsel and to proceed pro se; a motion for discovery; and a motion to suppress any letters allegedly written by him, any findings in connection with his involuntary commitment, and all results of mental evaluations and any other tests by Dr. Kara Belue. Appellant also filed a motion to dismiss the not-fit-to proceed order, alleging that it was his attorney, not he, who was not fit to proceed, along with a supporting memorandum. Appellant filed another motion to dismiss and supporting memorandum on December 30, seeking to have the charges against him dismissed. Appellant filed other motions during this time, including a motion to admit exculpatory evidence, a motion to admit evidence, and a motion for habeas corpus.

Appellant underwent a forensic evaluation performed by Dr. Michael J. Simon on February 2 and February 4, 2016. The court received the complete report on February 10. Dr. Simon opined that at the time of the examination, (1) appellant did not lack the capacity to understand the proceedings against him and assist effectively in his own defense, and (2) appellant did not have a mental disease or a mental defect. He also opined that at the time of the alleged conduct, appellant did not (1) have a mental disease or mental defect, (2) lack the capacity to appreciate the criminality of his conduct, or (3) lack the capacity to conform his conduct to the requirements of the law. Dr. Simon concluded that appellant was competent to stand trial. The court entered an order setting a motion hearing for March 8, 2016, and a jury trial for the week of March 14.

At the March 8 hearing, appellant advised the court that he was trying to obtain Brandon Crawford as his private counsel and that he had the money to do so. Based on this information, the court agreed to move appellant's case to the week of April 18 and to send the information to both Beckham and Crawford. On April 1, appellant filed a motion for a change of venue or the appointment of a special judge, citing a conflict due to his filing a lawsuit against several people, including Judge McCallum.

A hearing regarding appellant's fitness to proceed took place on April 4. At the beginning of the hearing, the court advised appellant it had been informed that Crawford was not going to represent appellant and appellant acknowledged he had received a declination letter from Crawford. Dr. Simon testified that he spent several hours with appellant while performing the forensic examination and that there was no clear evidence that appellant suffered from a mental disease or defect. He acknowledged that appellant's history showed at least two psychotic episodes (when appellant was admitted involuntarily to Levi Hospital and when appellant wrote several letters to the court while incarcerated),² but such was not the case at the time of the evaluation and, in his opinion, when the crime was committed. On cross, Dr. Simon stated that he stood by his conclusion that appellant was fit to proceed and that appellant appreciated the criminality of his conduct at the time of the offense.

Dr. Katharine Sunder testified that she is a postdoctoral fellow at the Arkansas State Hospital. She stated that she reevaluated appellant after he was ordered confined at the hospital. She said that she interviewed appellant for two hours and described her conclusion that appellant was unfit to proceed as a "tough call." She stated that the biggest deficit she saw in appellant was his ability to effectively assist counsel, which she acknowledged was primarily around the delusional or psychotic beliefs that she felt were present at the time of her mental evaluation.³

Dr. Kara Belue testified that she is a psychiatrist with the Arkansas State Hospital and that she was the treating physician for appellant when he was there. She stated that appellant was not prescribed any psychotropic medication while he was there because he refused to take it. She testified that she performed a psychiatric evaluation of appellant the day he arrived. She stated that she did not agree with Dr. Deyoub's diagnosis of paranoid personality disorder. She said that her belief that appellant should be medicated was based on his hostility toward her. Dr. Belue testified that once she found out that appellant had worked at all the places and in the capacities he claimed to, she could not trust Dr. Deyoub's diagnosis of psychosis.

Before the hearing concluded, appellant asked the court when he would be able to seek legal counsel. The court advised him that he could make phone calls and have family members contact attorneys on his behalf.

A review hearing took place on May 6. At that time, the court asked appellant how he wanted to proceed with regard to counsel. Appellant answered that he had fired Beckham, that he had a friend contacting attorneys on his behalf, and that he had also been sending postcards to potential attorneys. Appellant stated that he anticipated having an attorney to represent him "within the next week." He also informed the court that he was not in need of a public defender and that he "wasn't real[lly] truthful on anything that [he] wrote because [he] was thinking that they would try to seize [his] assets and stuff." However, he stated that he did have money in the bank to hire an attorney. The court stated that it would enter an order allowing Beckham to step aside from the case. The court entered an order on May 6, finding that appellant was fit to proceed. An order was entered on May 9, relieving Beckham as counsel, based on appellant's "oral motion to proceed pro se."⁴

At the review hearing on May 10, appellant informed the court that he had not hired an attorney but that his friend had been working "feverishly" trying to find one. The court set the case for trial on June 20 with a review date of June 7.

At the June 7 review hearing, appellant reported that he had unsuccessfully tried to retain several attorneys to represent him. Therefore, he stated that he would have to proceed pro se at "at this time." The following pertinent colloquy took place:⁵

THE COURT : And do you understand that there's the requirement that you proceed as a lawyer, if you represent yourself, you're held to the same standards as a lawyer with regard to procedure.

APPELLANT : The rules of procedure, yes sir.

THE COURT : [S]ubstantive law, and rules of evidence?

APPELLANT : Yes, sir.

THE COURT : Okay. The matter is set for trial the week of June 20th. There are other things that I need to advise you of.

Appellant's jury trial did not take place on June 20 as originally anticipated.

On June 29 Judge McCallum wrote a letter to Chief Justice Brill asking to recuse from appellant's case based on a conflict caused by appellant's naming him in a federal lawsuit. Our supreme court issued an order on July 6 granting Judge McCallum's request and assigning Judge Tom Cooper to appellant's case.

Appellant's pretrial hearing took place on July 19 before Judge Cooper. Appellant informed the court that he was still unable to find an attorney to represent him. When appellant expressed his lack of knowledge as to how to issue subpoenas, the court stated that it would prefer appellant allow the court to appoint him an attorney. Appellant declined the court's offer to appoint one of the local public defenders for his case, insisting that he would represent himself. However, the court did appoint Janice Williams to be present on the day of appellant's trial to assist him if he had any questions. When the court's discussion turned to the selection of the jury, appellant responded that he had "done a jury selection before."

Appellant filed a motion for subpoena on August 3. On August 16, he filed a...