{ "id": 1889894, "name": "Larry Dean ROBERTSON v. STATE of Arkansas", "name_abbreviation": "Robertson v. State", "decision_date": "1989-02-27", "docket_number": "CR 88-56", "first_page": "131", "last_page": "142", "citations": [ { "type": "official", "cite": "298 Ark. 131" }, { "type": "parallel", "cite": "765 S.W.2d 936" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "459 U.S. 1020", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6470880, 6471648, 6470944, 6471493, 6472023, 6471849, 6471563, 6471918, 6471121, 6471283, 6471031, 6471739, 6471390 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1020-01", "/us/459/1020-09", "/us/459/1020-02", "/us/459/1020-07", "/us/459/1020-13", "/us/459/1020-11", "/us/459/1020-08", "/us/459/1020-12", "/us/459/1020-04", "/us/459/1020-05", "/us/459/1020-03", "/us/459/1020-10", "/us/459/1020-06" ] }, { "cite": "449 U.S. 852", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746081, 11745662, 11745509, 11746374, 11745798, 11745736, 11746217, 11745934, 11745870, 11746288, 11745589, 11746009, 11746142 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/449/0852-09", "/us/449/0852-03", "/us/449/0852-01", "/us/449/0852-13", "/us/449/0852-05", "/us/449/0852-04", "/us/449/0852-11", "/us/449/0852-07", "/us/449/0852-06", "/us/449/0852-12", "/us/449/0852-02", "/us/449/0852-08", "/us/449/0852-10" ] }, { "cite": "375 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11726504, 11726218, 11726296, 11726393, 11726431 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0822-05", "/us/375/0822-01", "/us/375/0822-02", "/us/375/0822-03", "/us/375/0822-04" ] }, { "cite": "316 F.2d 606", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 169192 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/f2d/316/0606-01" ] }, { "cite": "470 F.2d 1214", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 261727 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/470/1214-01" ] }, { "cite": "648 F.2d 557", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1229683 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/648/0557-01" ] }, { "cite": "276 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751537 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0193-01" ] }, { "cite": "12 Ark. App. 301", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142339 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0301-01" ] }, { "cite": "265 Ark. 736", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664702 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0736-01" ] }, { "cite": "271 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756245 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0337-01" ] }, { "cite": "267 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719918 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "389" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ark/267/0380-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "474 U.S. 1013", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6486912, 6487264, 6487566, 6486831, 6487089, 6487346, 6487825, 6487921, 6487189, 6487733, 6488019, 6487480, 6487002, 6487644 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/us/474/1013-02", "/us/474/1013-06", "/us/474/1013-09", "/us/474/1013-01", "/us/474/1013-04", "/us/474/1013-07", "/us/474/1013-12", "/us/474/1013-13", "/us/474/1013-05", "/us/474/1013-11", "/us/474/1013-14", "/us/474/1013-08", "/us/474/1013-03", "/us/474/1013-10" ] }, { "cite": "476 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12545, 12994, 12387, 12611, 12460, 12504, 12571, 12604 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/us/476/1112-02", "/us/476/1112-05", "/us/476/1112-03", "/us/476/1112-07", "/us/476/1112-04", "/us/476/1112-01", "/us/476/1112-06", "/us/476/1112-08" ] }, { "cite": "761 S.W.2d 148", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1891463 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/297/0160-01" ] }, { "cite": "291 Ark. 160", "category": "reporters:state", "reporter": "Ark.", "year": 1988, "opinion_index": 1 }, { "cite": "296 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892711 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0458-01" ] }, { "cite": "296 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892791 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0033-01" ] }, { "cite": "295 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893798 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0489-01" ] }, { "cite": "295 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893809 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0276-01" ] }, { "cite": "295 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893764 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0228-01" ] }, { "cite": "748 S.W.2d 117", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1893800, 1895710 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0131-01", "/ark/294/0659-01" ] }, { "cite": "295 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893800 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0131-01" ] }, { "cite": "294 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895795 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/294/0287-01" ] }, { "cite": "294 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895708 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/294/0279-01" ] }, { "cite": "291 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872612 ], "weight": 2, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/291/0575-01" ] }, { "cite": "290 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873722 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/290/0060-01" ] }, { "cite": "289 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875409 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/289/0430-01" ] }, { "cite": "289 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875389 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/289/0138-01" ] }, { "cite": "289 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875452 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/289/0130-01" ] }, { "cite": "292 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871450 ], "year": 1987, "pin_cites": [ { "parenthetical": "evidence of the appellant's behavior subsequent to the crime should have been considered as a mitigating factor." } ], "opinion_index": 1, "case_paths": [ "/ark/292/0632-01" ] }, { "cite": "108 S.Ct. 546", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 600972 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/484/0231-01" ] }, { "cite": "754 F.2d 258", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 288734 ], "opinion_index": 1, "case_paths": [ "/f2d/754/0258-01" ] }, { "cite": "806 F.2d 153", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1656069 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/f2d/806/0153-01" ] }, { "cite": "806 F.2d 158", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1656263 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/f2d/806/0158-01" ] }, { "cite": "476 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12835 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/us/476/0162-01" ] }, { "cite": "753 F.2d 694", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 292486 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/f2d/753/0694-01" ] }, { "cite": "754 F.2d 254", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 288186 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/f2d/754/0254-01" ] }, { "cite": "653 F.Supp. 1114", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 565537 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/f-supp/653/1114-01" ] }, { "cite": "856 F.2d 1144", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536408 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/f2d/856/1144-01" ] }, { "cite": "675 F.Supp. 469", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7401540 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/f-supp/675/0469-01" ] }, { "cite": "108 S.Ct. 299", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 1 }, { "cite": "821 F.2d 469", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1699821 ], "opinion_index": 1, "case_paths": [ "/f2d/821/0469-01" ] }, { "cite": "852 F.2d 339", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10543087 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/f2d/852/0339-01" ] }, { "cite": "290 Ark. 319", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873789 ], "weight": 4, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/290/0319-01" ] }, { "cite": "285 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877693 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark/285/0462-01" ] }, { "cite": "276 Ark. 203", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751554 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/276/0203-01" ] }, { "cite": "277 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750207 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/277/0225-01" ] }, { "cite": "714 F.2d 1455", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1886571 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/f2d/714/1455-01" ] }, { "cite": "435 U.S. 909", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2984, 2740, 2276 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/us/435/0909-02", "/us/435/0909-03", "/us/435/0909-01" ] }, { "cite": "261 Ark. 756", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678984 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/261/0756-01" ] }, { "cite": "292 Ark. 362", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871152 ], "weight": 3, "year": 1987, "pin_cites": [ { "parenthetical": "evidence of the appellant's behavior subsequent to the crime should have been considered as a mitigating factor." } ], "opinion_index": 1, "case_paths": [ "/ark/292/0362-01" ] }, { "cite": "295 Ark. 682", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893808 ], "weight": 4, "year": 1988, "pin_cites": [ { "parenthetical": "aggravating circumstance \"especially heinous, atrocious or cruel\" unconstitutionally vague" }, { "parenthetical": "aggravating circumstance \"especially heinous, atrocious or cruel\" unconstitutionally vague" } ], "opinion_index": 1, "case_paths": [ "/ark/295/0682-01" ] }, { "cite": "291 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872655 ], "weight": 4, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/291/0521-01" ] }, { "cite": "292 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871399 ], "weight": 4, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/292/0421-01" ] }, { "cite": "293 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869795 ], "weight": 4, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/293/0088-01" ] }, { "cite": "295 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893740 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0401-01" ] }, { "cite": "296 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892781 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0181-01" ] }, { "cite": "292 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871268 ], "weight": 4, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/292/0144-01" ] }, { "cite": "107 S.Ct. 1331", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1986, "opinion_index": 1 }, { "cite": "479 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6559402, 6559372, 6559345, 6559450, 6559324 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/us/479/1101-04", "/us/479/1101-03", "/us/479/1101-02", "/us/479/1101-05", "/us/479/1101-01" ] }, { "cite": "289 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875391 ], "weight": 4, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/289/0387-01" ] }, { "cite": "108 S.Ct. 202", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1987, "opinion_index": 1 }, { "cite": "290 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873775 ], "weight": 4, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/290/0503-01" ] }, { "cite": "295 Ark. 57", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893710 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0057-01" ] }, { "cite": "296 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892765 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0041-01" ] }, { "cite": "296 Ark. 308", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892704 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0308-01" ] }, { "cite": "297 Ark. 26", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891375 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/297/0026-01" ] }, { "cite": "280 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744766 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "Hickman, J., concurring" }, { "parenthetical": "Hickman, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/ark/280/0190-01" ] }, { "cite": "289 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875433 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "Hickman, J., concurring" }, { "parenthetical": "Hickman, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/ark/289/0091-01" ] }, { "cite": "350 U.S. 422", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12033334 ], "weight": 2, "year": 1956, "opinion_index": 2, "case_paths": [ "/us/350/0422-01" ] }, { "cite": "276 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751537 ], "weight": 2, "year": 1982, "opinion_index": 2, "case_paths": [ "/ark/276/0193-01" ] }, { "cite": "12 Ark. App. 301", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142339 ], "weight": 2, "year": 1984, "opinion_index": 2, "case_paths": [ "/ark-app/12/0301-01" ] } ], "analysis": { "cardinality": 1118, "char_count": 24035, "ocr_confidence": 0.89, "pagerank": { "raw": 1.4574925139652236e-07, "percentile": 0.6562347843445699 }, "sha256": "f6f1a13842db19a0296ccda4426d751bf76855127401d730168ea7c83b77c66b", "simhash": "1:4a4cac32642e11da", "word_count": 4059 }, "last_updated": "2023-07-14T20:49:53.094543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman, J., concurs.", "Purtle and Glaze, JJ., dissent in part.", "Purtle, J., joins this dissent." ], "parties": [ "Larry Dean ROBERTSON v. STATE of Arkansas" ], "opinions": [ { "text": "David Newbern, Justice.\nLarry Dean Robertson appeals his conviction of capital murder for which he was sentenced to life imprisonment without parole. Robertson was accused of murdering Mrs. Bernice Sanderlin. The evidence showed that Robertson was released from prison and taken by a prison official to Dumas where he was to get on a bus. He went into a business establishment where he stabbed Mrs. Sanderlin with a pair of scissors. The scissors penetrated her eye and brain and caused her death. He left with Mrs. Sanderlin\u2019s purse. The judge refused at several stages of the trial to rule on whether Robertson was mentally competent to stand trial. The judge erroneously thought, and stated repeatedly, that the question of competency to stand trial was to be resolved by the jury. We have no choice but to reverse and remand for a new trial.\nRobertson was committed to the state hospital for a pre-trial mental examination. The report, filed on June 10, 1987, concluded he was capable of cooperating effectively with his attorney. On August 7,1987, the two lawyers who had been appointed to defend Robertson moved to suspend activity in the case and submitted affidavits to the effect that Robertson visualized the issues in his case in a manner incomprehensible to reasonable persons, and that he was hallucinating and unable to assist the lawyers in defending him.\nA pre-trial hearing was held to consider several motions, one of which was the motion to suspend activity in the case. Dr. Paula Lynch testified she examined Robertson at the state hospital. She had access to records of other medical facilities, one of which concluded Robertson was schizophrenic and that he had been taking Thorazine, a major tranquilizer, and that Navane, an anti-psychotic drug had been prescribed for him. She did not interview Robertson\u2019s family. She found him to be virtually symptom free and concluded he was competent at the time of her evaluation of him. At the close of the hearing, the court denied the motion to suspend activity.\nCounsel for Robertson then took Dr. Lynch\u2019s deposition pursuant to a court order. They asked her whether she had been hospitalized for any condition other than childbirth, and she refused to answer, citing the fifth amendment. At a pre-trial hearing on October 5, 1987, counsel asked the court to hold Dr. Lynch in contempt for her failure to respond or to strike her testimony from the record. The prosecutor said he had no objection to striking Dr. Lynch\u2019s testimony and that he had no intention of calling her as a witness-at the trial. The court refused to strike the testimony, noting that Dr. Lynch\u2019s testimony had been at the request of the defense.\nAlso at the October 5 hearing, counsel presented testimony by Robertson\u2019s parents to the effect that Robertson had had mental problems, and tendencies toward violence, since his high school days. They also testified about periods of hospitalization for mental illness Robertson had undergone in Mississippi. Dr. Douglas Stephens testified he had interviewed Robertson on several occasions and had concluded he suffered from paranoid schizophrenia and was unable to assist counsel in his defense.\nAt the conclusion of the hearing, the court denied the motion to suspend the proceedings due to Robertson\u2019s inability to communicate effectively with his counsel. The court stated it would be for the jury to decide if Robertson had a defense of mental defect. The prosecutor then asked the court to make a finding whether Robertson could communicate adequately with his attorneys. The court refused, again stating it was for the jury to decide. As abstracted by the appellant, the discussion was:\nMr. Gibson [the prosecutor]: Could I ask the court to make a finding as to whether or not Mr. Robertson is able to communicate adequately with the attorneys?\nThe court: No, that would be making a ruling. It\u2019s for the jury to determine his condition.\nMr. Gibson: I\u2019m talking about his fitness to proceed.\nThe court: We\u2019re going to proceed.\nMr. Gibson: In other words, the Court is so finding he is.\nThe court: Fit to proceed. The jury has certain responsibilities, and that\u2019s what they\u2019re going to do.\nMr. Haddock [defense counsel]: The Court\u2019s ruling is, if I understood the Court correctly, that it\u2019s a jury question for them to determine whether or not he has present abilities to effectively assist counsel in his defense?\nThe court: Well, no, I\u2019m ruling that it\u2019s for the jury to determine or not whether he was able to conform his actions to the requirements of the law on this alleged date.\nAlthough the appellant did not abstract the remainder of the court\u2019s remarks, they are quoted accurately in the argument portion of his brief, and at page 5. of the state\u2019s brief it is acknowledged that the court stated just after the discussion quoted above that the court was not making \u201cany ruling\u201d as to Robertson\u2019s mental condition. The court\u2019s statement continued as follows:\nNow, by finding that, when the jury finds that they\u2019ll be taking care of all these ancillary matters. Now, they can find whatever they find to be the facts, but I\u2019m not going to make any rulings as to his mental condition and his abilities to consult with anybody or help anybody.\nThroughout the pre-trial proceedings and during the trial, Robertson, against the advice of his counsel, insisted on making statements to the court, some of which could only be characterized as bizarre. He referred to various agencies of the federal government such as the CIA, the NSC, and the FBI, and demanded that the records kept on him by these agencies be furnished to him.\nToward the conclusion of the trial, Robertson insisted on making a statement before the jury. His counsel objected and renewed the motion to suspend the proceedings on the ground that Robertson was incapable of assisting in his defense. The prosecutor commented that the court was competent to determine whether Robertson was able to assist his counsel. The court denied the motion and again stated it would be for the jury to determine whether Robertson was competent.\nThe defense presented testimony of Dr. Stephens as well as testimony of Dr. Donald Gold, a psychiatrist who had visited with Robertson and studied his case while Robertson was hospitalized in Memphis for a severe burn. Dr. Gold testified that Robertson was schizophrenic and that the only way he could help his counsel would be by \u201covertly demonstrating to the world just how bizarre and confused he is.\u201d After Dr. Gold\u2019s testimony, Robertson\u2019s counsel renewed the motion to suspend the proceedings. Robertson stated he wanted to exercise his first amendment right, presumably to testify. The court said: \u201cYou want to continue, Mr. Robertson?\u201d Robertson replied affirmatively, and the court said: \u201cAll right, the trial will continue. Your motion is overruled. Denied, Mr. Haddock.\u201d\n1. The court\u2019s duty\nIt is the duty of the court to rule whether an accused is competent to stand trial. The statute, Ark. Code Ann. \u00a7 5-2-309(a) (1987) provides: \u201cIf the defendant\u2019s fitness to proceed becomes an issue, it shall be determined by the court.\u201d In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980), 459 U.S. 1020 (1982), we held it was error to leave the matter to the jury. See Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).\nThe court in this case proceeded correctly to a point. There was no error in refusal to suspend the proceedings after the pretrial evaluation and hospital report and after Dr. Lynch\u2019s testimony. Nor was there any necessity to obtain a reevaluation of Robertson each time his counsel moved to suspend activity in the trial. All the court was required to do, if he remained convinced that Robertson was and remained fit to stand trial, was make that ruling. Instead, he said again and again that it was a matter for the jury to decide.\nThe state points out that by continuing with the trial, the court could be inferred to have made the ruling. It is also argued that the question of fitness to proceed was not referred to the jury, as no instruction was given on that point. We cannot agree with those arguments. If the court thought the question was one for the jury, continuing the trial was necessary in order to let them decide the issue. Both defense counsel and the prosecutor clearly understood the issue of fitness to stand trial was for the court to determine, and that explains the fact that neither side offered an instruction on the matter. But absence of such an instruction does not cure the court\u2019s misunderstanding that by deciding the general issue of Robertson\u2019s competency the jury would be deciding the \u201cancillary\u201d matter of his fitness for trial.\nAs we said in Gruzen v. State, supra, \u201cThe fact that there was a great potential for prejudice in the court\u2019s failure to rule on the issue may be easily demonstrated, if the mere failure to make a ruling cannot be said to be prejudicial in and of itself.\u201d 267 Ark. at 389, 591 S.W.2d at 347. Here, each time the issue was raised, there was additional direct evidence which could have borne on the court\u2019s decision whether Robertson was fit to stand trial. The prejudice is obvious.\n2. Dr. Lynch and the Fifth Amendment\nRobertson has raised other issues. The only one likely to arise in the event of a new trial is whether the court should force Dr. Lynch to reveal her previous medical history or strike her testimony.\nIf the issue here were simply whether treatment of Dr. Lynch for psychiatric disorder is privileged, we might reach the same result as was reached by our court of appeals in Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). There it was held, based on Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), that evidence of medical treatment, as opposed to physician-patient communications, could not be withheld because it was not covered by the physician-patient privilege found in A.R.E. 503. Here, however, Dr. Lynch, whether advisedly or not, relied on her fifth amendment right not to incriminate herself.\nThe federal appellate courts have wrestled with whether the testimony of a witness must be stricken where, for example, upon cross-examination the witness refuses to answer questions citing the fifth amendment privilege. The cases hold that the ruling is within the trial court\u2019s discretion. United States v. Seifert, 648 F.2d 557 (9th Cir. 1980); United States v. Star, 470 F.2d 1214 (9th Cir. 1972). See also United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. denied 375 U.S. 822 (1963). The testimony should be stricken if failure to answer deprives the party questioning the witness of the right to test the truth of the witness\u2019s direct testimony, as opposed to a collateral matter. United States v. Cardillo, supra.\nDr. Lynch\u2019s testimony was not before the jury. We find no error in the court\u2019s refusal to strike the testimony. The answers to the questions she was asked about her personal mental history would not have refuted her previous report and direct testimony about Robertson\u2019s condition. Rather, the answers could only have been viewed as affecting the weight of her previous, direct testimony.\nReversed and remanded.\nHickman, J., concurs.\nPurtle and Glaze, JJ., dissent in part.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Darrell Hickman, Justice,\nconcurring. I concur to update the history of our review of capital cases contained in Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and Van Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring).\nSince Fretwell, we have reviewed the imposition of the death sentence in thirteen cases. We have upheld the death penalty in seven cases: Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); O\u2019Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), petition for postconviction relief pending; Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987).\nWe also upheld the death penalty in the unusual case of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). Ronald Gene Simmons received the death penalty but waived his right to appeal his sentence. Franz attempted to bring an appeal as next friend. We determined Franz had no standing and affirmed Simmons\u2019 competency to waive his appeal.\nWe have reversed and remanded the following cases in which the death penalty was imposed: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).\nIn Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), we found an error in the sentencing phase only. We vacated the death sentence and remanded to allow either the imposition of a life sentence or the impanelling of a new sentencing jury.\nWe also found error in the sentencing phase in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). We had previously upheld Pickens\u2019 death sentence, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). But the Eighth Circuit reversed due to ineffective assistance of counsel. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). On retrial, Pickens received the death penalty again, but we found error and reversed.\nNone of the above cases have been presented on a second appeal, nor have Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982), and Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), which we reversed and remanded seven years ago. We reversed and remanded in Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), the first time it was before the court, but the case was affirmed on its second appeal. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986).\nIn the seven cases since Fretwell that have survived our review, six of the defendants are white and one is black. (Juries in these 13 cases imposed the death penalty on seven black men and six white men.)\nDuring the period from May 12,1986, to this date, we have reviewed 28 cases in which capital murder was the finding and the death penalty sought. The death penalty was imposed in 13 cases and life imprisonment without parole was imposed in the remaining 15.\nSome cases are beginning to survive the gauntlet of the federal district court and the Eighth Circuit Court of Appeals. Habeas corpus relief has been denied in Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988); Hulsey v. Sargent, 821 F.2d 469 (8th Cir.), cert. denied, _ U.S. _, 108 S.Ct. 299 (1987), and Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). But some cases seem to just disappear into the federal judicial machinery. For instance, in 1980 we affirmed the conviction of Eddie Lee Miller. Miller filed a habeas petition in federal district court in 1981. Eight years have passed and there has been no ruling on the petition.\nOther cases have met with similar delays. The habeas petition of John Edward Swindler has been pending in federal court since 1981; Clay Anthony Ford since 1982; Darrell Wayne Hill since 1983; Ricky Ray Rector since 1984; and Wilburn Anthony Henderson since 1984. The question has to be asked: why have these Arkansas cases been neglected or delayed? Arkansas deserves an answer.\nHabeas relief has been granted in Simmons v. Lockhart, 856 F.2d 1144 (8th Cir. 1988), and Singleton v. Lockhart, 653 F.Supp. 1114 (E.D. Ark. 1986).\nTwo cases merit special mention. In 1986 the U.S. Supreme Court vacated the Eighth Circuit\u2019s decisions in Ruiz and Van Denton v. Lockhart, 754 F.2d 254 (8th Cir. 1985), and Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985), vacated, 476 U.S. 1112 (1986). The Eighth Circuit had reasoned that death qualified juries are unconstitutional, but the Supreme Court later held that they are not. See Lockhart v. McCree, 476 U.S. 162 (1986).\nNevertheless, after those decisions were vacated, the Eighth Circuit set aside the death sentences again, reasoning.that it is unconstitutional to use pecuniary gain as an \u00e1ggravating circumstance in a robbery-murder case (known as the \u201cdouble counting\u201d argument). Ruiz and Van Denton v. Lockhart, 806 F.2d 158 (8th Cir. 1986); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986). That was also the reasoning used to reduce the death sentence to life imprisonment in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985). But in the recent case of Lowenfield v. Phelps, _ U.S._, 108 S.Ct. 546 (1988), the Supreme Court overruled the Eighth Circuit\u2019s position on the issue.\nAfter thirteen years of court review, the death sentence still remains unexecuted. I have kept these figures for my own information as well as for anyone else interested in how the law of capital punishment fares. One safe conclusion can be made: there seems to be no end to judicial review of these decisions.\nADDENDUM\nIn the following cases this court affirmed the appellants\u2019 death sentences:\nStarr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). (Starr raped his 76 year old victim and killed her with an iron pipe.)\nWhitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988). (Whitmore stabbed his victim, cut her throat and took a small amount of money from her house.)\nFranz v. State, 296 Ark. 181, 754 S.W.2d 839(1988). (Franz, as next friend, appealed the death sentence of Ronald Gene Simmons. Simmons killed two people, wounded four and took one hostage during a shooting spree in Russellville.)\nGardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). (Gardner strangled a married couple and their daughter during the course of robbing their home.)\nO\u2019Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988),petition for postconviction relief pending. (O\u2019Rourke murdered his parents.)\nSnell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987). (Snell murdered a pawnshop owner in the course of a robbery.)\nHill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987). (Hill escaped from prison, took a family hostage, and later killed a state trooper.)\nThe court found error in the sentencing phase in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988) (aggravating circumstance \u201cespecially heinous, atrocious or cruel\u201d unconstitutionally vague), and in Pickens v. State, 292 Ark. 632, 730 S.W.2d 230 (1987) (evidence of the appellant\u2019s behavior subsequent to the crime should have been considered as a mitigating factor.)\nThe court has reversed the following death penalty cases, but they have not been presented again on appeal: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).\nIn the following cases, capital murder was charged and found and though the death penalty was sought, it was not imposed: Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); Rhodes v. State, rev\u2019d and remanded, 290 Ark. 60, 716 S.W.2d 758 (1986); Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); Rose v. State, rev\u2019d and remanded, 294 Ark. 279, 742 S.W.2d 901 (1988); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Bowden v. State, rev\u2019d and remanded, 291 Ark. 160, 761 S.W.2d 148 (1988).", "type": "concurrence", "author": "Darrell Hickman, Justice," }, { "text": "Tom Glaze, Justice,\ndissenting in part. I respectfully dissent from the majority\u2019s holding that the trial court did not err in refusing to strike the testimony of Dr. Lynch after she asserted the fifth amendment. Dr. Lynch simply had no fifth amendment right to assert, yet the majority opinion allows a witness the right to refuse to testify even though that witness has no legal basis to do so.\nPrior to trial, appellant\u2019s counsel obtained information that Dr. Lynch had suffered from psychiatric problems; thus, counsel requested the court to order Dr. Lynch to divulge her medical records which might reflect her professional competence and ability to testify. Both the state and defense counsel agreed to an order to require Dr. Lynch to be deposed and for her to bring her medical records to the deposition. At the subsequent deposition, Dr. Lynch, invoking the fifth amendment, refused to provide her medical information. Appellant\u2019s counsel moved to have Dr. Lynch held in contempt, or in the alternative, to strike her prior testimony concerning appellant\u2019s competency. Although the prosecutor stated that he had no objection to the striking of Dr. Lynch\u2019s testimony, the trial court still refused to grant the motion to strike or to hold Dr. Lynch in contempt.\nObviously, Dr. Lynch\u2019s testimony was an important part of the state\u2019s case, especially concerning appellant\u2019s fitness to proceed to trial. The state was quite aware of the problem it had regarding Dr. Lynch as a witness because it decided not to call her at trial.\nClearly, the fifth amendment operates only where a witness is asked to incriminate himself \u2014 in other words, to give testimony which may possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422 (1956). Its [the fifth amendment\u2019s] sole concern is to afford protection against the danger to a witness of being forced to give testimony leading to the infliction of penalties affixed to criminal acts. Id.\nHere, defense counsel was only seeking information concerning Dr. Lynch\u2019s prior medical history so as to impeach her testimony. In other words, the defense\u2019s quest for information had nothing to do with exposing Dr. Lynch to a criminal charge. In my view, the majority court\u2019s erroneous application of the fifth amendment has caused the court to reach an incorrect result, leaving the impression that the fifth amendment can be invoked to refuse to testify even in instances where the fifth amendment was never intended to apply. It is my opinion that a witness cannot justify his or her refusal to testify based upon the fifth amendment when he or she clearly has no grounds to assert that amendment.\nThe issue here, which the majority chooses to ignore, is whether Dr. Lynch\u2019s medical records and history (which purportedly reveal a psychiatric disorder) are privileged. In Horn v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984), the court of appeals, in accordance with Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), correctly held that the physician/patient privilege found in A.R.E. 503 only protects confidential communications between doctor and patient, as opposed to evidence of medical treatment. In the instant case, Dr. Lynch was not asked about confidential communications between herself and her doctor, but was only asked about the fact of treatment. By refusing to compel her to answer the questions or, in the alternative, to strike her testimony, the trial court has effectively denied the appellant the right to cross examine this important expert witness. This was clear error.\nPurtle, J., joins this dissent.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Haddock & Mazzanti, by: James W. Haddock; Johnson & Harrod, by: S. Reid Harrod, for appellant.", "Steve Clark, Att\u2019y Gen., by: O\u00edan W. Reeves, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Larry Dean ROBERTSON v. STATE of Arkansas\nCR 88-56\n765 S.W.2d 936\nSupreme Court of Arkansas\nOpinion delivered February 27, 1989\nHaddock & Mazzanti, by: James W. Haddock; Johnson & Harrod, by: S. Reid Harrod, for appellant.\nSteve Clark, Att\u2019y Gen., by: O\u00edan W. Reeves, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0131-01", "first_page_order": 155, "last_page_order": 166 }