Lacy v. State

JIM HANNAH, Chief Justice.

| Appellant Brandon Lacy appeals from the denial of his petition for postconviction relief under Rule 37.5 of the Arkansas Rules of Criminal Procedure, and from the circuit court’s subsequent order, amended order, and second amended order denying his motions for reconsideration. Lacy was convicted of capital murder and aggravated robbery and sentenced to death and life imprisonment, respectively, and his convictions and sentences were affirmed on direct appeal. Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. Lacy asserts that the circuit court erred (1) in denying his petition without an evidentiary hearing, (2) in rejecting his assertion that trial counsel were ineffective for failing to investigate and present the affirmative defense of mental disease and defect, and (B) in rejecting his assertion that trial counsel were ineffective for failing to present adequate mitigating evidence during the penalty phase of the trial. We reverse and remand to the circuit court for an evidentia-ry hearing.

On September 6, 2011, Lacy filed a petition for postconviction relief, asserting that | atrial counsel were constitutionally ineffective when they failed to investigate and present the affirmative defense-of mental disease and defect and when they failed to put before the jury little, if any, mitigation evidence during the penalty phase of the trial. In addition, Lacy asserted that he was entitled to relief due to cumulative error in his trial. Finally, Lacy requested additional time to review the file so that further medical testing could be completed, and he requested permission to file an amended petition, contending that the ninety-day deadline was insufficient to allow a proper review and presentation on all grounds for postconviction relief.

On October 19, 2011, the circuit court entered an order denying the petition for postconviction relief without a hearing. The circuit court found that (1) trial counsel were not ineffective for failing to investigate or present the affirmative defense of mental disease or defect, because the State’s expert, forensic psychiatrist Dr. Robin Ross, found no evidence of mental disease or defect, and Lacy’s expert, psychologist Dr. Gurtis Grundy, found Lacy competent to stand trial; (2) trial counsel were not ineffective for failing to call witnesses to testify about Lacy’s history of alcoholism, because voluntary intoxication is no defense to a crime and no evidence was submitted to establish that Lacy lacked the capacity to understand the criminality of his conduct or to conform his behavior to the law; (3) trial counsel were not ineffective for failing to call Dr. Grundy to testify about Lacy’s alcoholic blackouts, because “that testimony might not have been admissible,” and, even if it were, there was “possible strategic reasoning for the decision not to attempt to introduce it”; (4) trial counsel were not ineffective for failing to call Lacy’s ex-wife, Jamie Brewer, to testify about Lacy’s | ?,alcoholic blackouts as evidence of “memory confabulation,” because the record contains ample evidence of Lacy’s independent recollection of the homicide; (5) trial counsel were not ineffective for failing to present adequate mitigating evidence during the penalty phase of the trial, because the record “is replete with testimony of family members and a community member during the penalty portion of the trial,” and fifteen mitigating circumstances were found to exist by one or more of the jurors; (6) trial counsel wére not ineffective for failing to call Brewer to testify that Lacy was a good father, because “for strategic reasons the defense may well have chosen not to ‘open that door’ in testimony’ ”; and (7) cumulative error was not a claim for postconviction relief. Finally, the circuit court concluded that an evidentiary hearing was not required because the record and files in the case conclusively showed that Lacy was not entitled to relief.

Lacy filed a notice of appeal, as well as a motion for reconsideration. In his motion for reconsideration, Lacy noted that the circuit court’s order failed to address the request for an extension of time and the request to file an amended petition. In addition, Lacy attached a letter from Dr. Bhushan Agharkar, who stated that, based on his interview with Lacy, there was significant evidence to suggest that Lacy exhibited “ ‘soft signs’ of neurologic damage, particularly organic brain damage.” Dr. Agharkar also stated that his findings were preliminary and required further testing. Lacy stated in his motion for reconsideration that he had received authorization from the Arkansas Public Defender Commission to hire Dr. Barry Crown, a neuropsychologist, to conduct further testing. Lacy requested that the circuit court set aside its order denying relief, allow him to file an amended petition for 14postconviction relief, and hold a hearing on the merits of the petitibn. Lacy subsequently filed a second motion for reconsideration, which added the findings of Dr. Barry Crown, who found, inter alia, that Lacy suffered from “a significant neuropsychological impairment impacting multiple functional areas” and that “[t]he voluntariness of his intoxication episodes is brought into question due to his brain damage.” The circuit court denied both motions for reconsideration.

Lacy contends that the circuit court erred in denying his petition without an evidentiary hearing. Rule 37.3 requires an evidentiary hearing in a postconviction proceeding unless the petition and the files and records of the ease conclusively show that the petitioner is entitled to no relief. E.g., Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). Where the circuit court concludes, without a hearing, that the petitioner is not entitled to relief, the circuit court “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.Crim. P. 37.3(a).

In this case, the circuit court determined that a hearing was not required because the files and record conclusively showed that Lacy was not entitled to relief. Specifically, the circuit court found that Lacy was entitled to no relief on his claim that trial counsel were ineffective for failing to call Dr. Grundy to testify about Lacy’s alcoholic blackouts because such testimony “might not have been admissible,” and even if it were, there was a “possible strategic reason! ] for the decision not to attempt to introduce” the testimony of Dr. Grundy. (Emphasis added.)The circuit court also found that Lacy was entitled to no relief on his claim that trial counsel were ineffective for failing to call his ex-wife to testify that he was a good | .¡father because “for strategic reasons the defense may well have chosen not to ‘open that door’ in testimony.” (Emphasis added.)

' These findings belie the circuit court’s determination that a hearing was not required in this case. As previously stated, an evidentiary hearing is required in a postconviction proceeding unless the files and record conclusively show that the petitioner is not entitled to relief. Sanders, supra; Ark. R.Crim. P. 37.3(a) (emphasis added). “Conclusive” means “[a]u-thoritative; decisive; convincing.” Black’s Law Dictionary 329 (9th ed.2009). The circuit court’s use of tentative language, such as “might,” “possible,” and “may well have,” in the aforementioned findings does not sustain its determination that the files and record conclusively show that Lacy is entitled to no relief. Rather, the findings indicate that the circuit court’s decision not to hold a hearing was based, in part, on the circuit court’s suppositions about how trial counsel might have explained the decisions they made at trial. Accordingly, we reverse and remand for an evidentiary hearing.

Finally, although the dissent concludes that trial counsels’ decision not to call Dr. Grundy during the penalty phase was a tactical decision supported by reasonable professional judgment, that conclusion is not borne out by the record. The dissent relies on the fact that the State indicated it would cross-examine Dr. Grundy with Lacy’s statement to Deputy Wedgewood that he enjoyed killing the victim. However, even assuming Lacy’s statement was admissible to rebut Dr. Grundy’s proposed guilt-phase testimony concerning Lacy’s 1 fialcoholic blackouts at the time of the crime,¹ it does not automatically follow that Lacy’s statement was admissible to rebut Dr. Grundy’s proposed penalty-phase testimony regarding Lacy’s chronic substance abuse and mental health history.

17Moreover, a review of the record reveals that trial counsel offered no explanation for the decision not to call Dr. Grundy during the penalty phase, other than it was tactical. Without benefit of an evidentiary hearing, we are left to surmise that trial counsel exercised reasonable professional judgment when they declined to call Dr. Grundy as a mitigation witness. This we ■will not do.

Reversed and remanded.

GOODSON, J., dissents.

1 . The State conceded at trial that there was a potential Miranda violation regarding Lacy's statement to Deputy Wedgewood. Nevertheless, the State requested that the circuit court rule on the voluntariness of the statement, contending that if Lacy’s statement about enjoying the killing was voluntary, then the State could use the statement for impeachment purposes if Dr. Grundy testified about Lacy’s alcoholic blackouts at the time of the crime. In support of this argument, the State cited Wilkes v. United States, 631 A.2d 880 (D.C.1993) and State v. DeGraw, 196 W.Va. 261, 470 S.E.2d 215 (1996). In Wilkes, the District of Columbia Court of Appeals held that

when a defendant offers the testimony of an expert in the course of presenting an insanity defense and the expert’s opinion is based, to any appreciable extent, on statements made to the expert by the defendant, the government may offer evidence excluded under Miranda — either by way of impeachment (i.e., during cross-examination of the expert) or in rebuttal (i.e., by showing independently that the statements made to the expert were false) — for consideration by the fact-finder in assessing the expert’s opinion.”

Id. at 890-91.

In DeGraw, the West Virginia Supreme Court held that

when a defendant offers the testimony of an expert in the course of presenting a defense such as the insanity defense or the diminished capacity defense, which calls into question the defendant’s mental condition at the time the crime occurred, and the expert’s opinion is based, to any appreciable extent, on the defendant’s statements to the expert, the State may offer in evidence a statement the defendant voluntarily gave to police, which otherwise is found to be inadmissible in the State's case-in-chief, solely for impeachment purposes either during the cross-examination of the expert or in rebuttal, even though the defendant never takes the witness stand to testily.

470 S.E.2d at 224.