Lard v. State

2020 Ark. 110

595 S.W.3d 355

Jerry LARD, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-351

Supreme Court of Arkansas.

Opinion Delivered: March 12, 2020

Rehearing Denied April 30, 2020

Short Law Firm, by: Lee D. Short, Little Rock, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

RHONDA K. WOOD, Associate Justice

Jerry Lard, who has been sentenced to death for capital murder, appeals the circuit court’s order that he can waive his right to postconviction relief, including his Rule 37.5 petition. Additionally, he appeals the circuit court’s declining to address whether he is constitutionally ineligible for the death penalty due to mental disability. We affirm.

I. Background

A Greene County jury convicted Lard of capital murder, attempted capital murder, and possession of a controlled substance and sentenced him to consecutive sentences of death, life in prison, and ten years in prison. Lard appealed his conviction, and in 2014, we affirmed. Lard v. State , 2014 Ark. 1, 431 S.W.3d 249.

In 2015, Lard filed a petition for postconviction relief with the circuit court pursuant to Arkansas Rule of Criminal Procedure 37.5. He argued that his counsel was constitutionally ineffective for failing to sufficiently investigate whether he was intellectually disabled. The circuit court initiated a Rule 37.5 hearing during which Lard’s counsel presented the testimony of Dr. Daniel Reschly, an experienced psychologist with a doctorate in philosophy who evaluated Lard after his conviction. Dr. Reschly diagnosed him with mild intellectual disability. After Dr. Reschly testified, the court recessed the hearing to allow the State to prepare its cross-examination of Dr. Reschly and to retain a rebuttal expert.

In the interim, Lard’s postconviction counsel was permitted to withdraw after asserting that his relationship with Lard was "irreparably harmed." Newly appointed counsel advised the circuit court that Lard desired to waive his postconviction remedies, including his Rule 37.5 petition, which counsel asked the court to dismiss. The circuit court suspended the Rule 37.5 hearing and ordered Lard to undergo an independent psychological evaluation. After that evaluation, the circuit court held a hearing to determine whether Lard had the capacity to waive his postconviction remedies. Based on the evidence submitted at the hearing, the circuit court concluded that Lard’s waiver was made knowingly and intelligently and with the capacity to choose between life and death. Lard appeals.

II. Analysis

A. Ineligible for Death Penalty Due to Mild Intellectual Disability

First, in his Rule 37.5 petition, Lard argued that under Ark. Code Ann. § 5-4-618, he could not have been sentenced to death because of his intellectual disability and that his counsel failed to investigate his adaptive functioning deficits necessary to prove his intellectual disability. To the extent Lard now argues that he should not have been sentenced to death because of his intellectual disability, the circuit court had to determine whether Lard was competent to waive before considering this and any other post-conviction arguments. Because, as discussed below, Lard has waived his postconviction remedies, Lard also has waived this argument.

Additionally, Lard argues that he is ineligible for execution because his expert diagnosed him with mild intellectual disability. The Supreme Court in Atkins v. Virginia categorically prohibited the execution of mentally disabled individuals.

536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (forbidding imposition of the death penalty on persons who are intellectually disabled). After Lard asked the circuit court to dismiss his Rule 37.5 petition, Lard filed a "Motion for Post-Conviction Hearing" asserting, "there exists credible evidence ... that Defendant is not eligible to be executed." Lard similarly argues on appeal that, "This Court should ... reverse and remand the case for a hearing on the issue of Lard’s intellectual disability as a bar to his execution." The circuit court also refused to address this argument and limited the hearing to the issue of competency to waive. Lard claims the circuit court’s refusal to consider this issue was erroneous. However, this argument is not currently ripe for our review because Lard’s execution date has not been set. See Isom v. State , 2015 Ark. 219, 462 S.W.3d 638 ; Nooner v. State , 2014 Ark. 296, 438 S.W.3d 233 ; see also Roberts v. State , 2020 Ark. 45, 592 S.W.3d 675. When an execution date has been scheduled, the issue will be ripe as to the experts’ disagreement whether Lard’s current mental status is such that he cannot be executed. Therefore, as a matter of law, we find that the circuit court correctly refused to decide whether Lard can be executed due to an intellectual disability.

B. Waiver of Postconviction Remedies

Lard next argues that the circuit court’s finding that he was competent to waive was clearly erroneous. A defendant sentenced to death will be able to forgo postconviction remedies only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. Roberts v. State , 2016 Ark. 118, 488 S.W.3d 524. This court has required that a timely mental-competency evaluation be completed in order for the circuit court to determine if the defendant is presently competent to waive. Roberts v. State , 2013 Ark. 57, at 9, 426 S.W.3d 372, 377. We will not disturb the circuit court’s decision on the issue of waiver unless its findings are clearly erroneous. Roberts , 2016 Ark. 118, at 6, 488 S.W.3d at 528. 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 made. Id.

After Lard requested waiver of his postconviction remedies, the circuit court ordered him to undergo competency testing by a disinterested psychiatrist or qualified psychologist. Dr. John Casey, a forensic psychiatrist with the Arkansas State Hospital, evaluated Lard in May 2018. Dr. Casey diagnosed Lard with borderline intellectual functioning, but not an intellectual disability. At the waiver hearing, Dr. Casey explained that an individual with an intellectual disability has a low IQ and has adaptive-functioning deficits that are specifically attributable to that person’s subaverage intelligence. Dr. Casey testified that Lard’s IQ scores of 70 and 72 were within the low-average range of intelligence and acknowledged that Lard had some adaptive-functioning issues. In Dr. Casey’s opinion, Lard’s borderline intellectual-functioning diagnosis did not render him incapable of appreciating the difference between life and death or of knowingly and intelligently waiving his right to appeal.

Dr. Reschly also testified at the competency hearing. Dr. Reschly had not evaluated Lard since October 2015 when his opinions were offered in support of Lard’s Rule 37.5 petition. He diagnosed Lard with mild intellectual disability. He based his opinion on Lard’s low IQ and adaptive behavior deficits. Unlike Dr. Casey, Dr. Reschly opined that Lard’s adaptive behavior deficits had been lifelong and a result of his low functional intelligence. However, Dr. Reschly did not render an opinion on whether Lard’s mild intellectual disability precluded Lard from knowingly and intellectually waiving his right to appeal. Instead, he stated that a person with a mild intellectual disability "would be impaired in thinking about [the waiver] and understanding the consequences, and then making a good judgment about that complex issue."

Lard also testified at the hearing. He explained that it was always his intention to waive his postconviction appeal after his direct appeal was denied. He wanted to waive his postconviction rights because he wanted to avoid "wasting away in prison" and the difficulties that the process would have on his family and the victim’s family. He understood that if he pursued his postconviction rights, he could possibly obtain a new trial or be resentenced to life, but if he waived his postconviction rights, he was choosing to have his execution carried out. He also stated that he understood that death means "[y]ou're no longer, you cease to exist. Anything and everything about you are nothin’ but memories. And in time, memories fade."

After the competency hearing, the circuit court concluded that Lard was competent to knowingly and intelligently waive his postconviction relief and had the capacity to choose between life and death and to have his death sentence carried out. The court stated that Lard understood that his decision to waive his Rule 37.5 petition could likely result in his execution. The circuit court also explained that while Dr. Reschly diagnosed Lard with mild intellectual disability, he did not examine or interview Lard specifically to determine Lard’s competency to waive, and he did not opine that Lard lacked the competency to waive.

We cannot say that the circuit court’s conclusion that Lard has the capacity to understand the choice between life and death and to knowingly and intelligently waive his postconviction rights to appeal was clearly erroneous.¹ While Dr. Casey and Dr. Reschly rendered different diagnoses, only Dr. Casey evaluated Lard and rendered an opinion on Lard’s competency to waive. And competency to waive was the only issue before the circuit court. Dr. Casey specifically concluded that Lard was competent despite his borderline intellectual-functioning diagnosis. Although Dr. Reschly diagnosed Lard with mild intellectual functioning, he did not testify that Lard lacked the capacity to understand his choice or to waive knowingly and intelligently. Additionally, Lard’s testimony, which the circuit court found cogent, demonstrated he understood his decision and its consequences.

Lard...