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## S UPREME COURT OF ARKANS AS
No. CR-12-118

RICKEY DALE NEWMAN APPELLANT
V.

STATE OF ARKANSAS APPELLEE Op in io n Del ivered January 16, 2014 APPEAL FROM TH E CRAWFORD COU NTY CIRCU IT COU RT [NO. 17-CR-2001-109]
H ONORAB LE GARY COTTRELL, JU DGE
REVERSED AND REMANDED.

CO U R TN EY H U D S O N G O O D SO N , As s ociat e J u st ice

A p p ellan t Ric k e y D ale N e w m an ap p e als th e o rd e r e n t e r e d b y t h e Craw f o rd Co u nt y Circ u it C o u r t d e n yin g h is p e t it io n f o r w rit o f e rro r co ram n ob is. F o r re ve rsal, N e w m an

c o n t e n d s t h at t h e c irc u it c o u rt e rre d (1) b y d en yin g h is m o tio n f o r j u d gm en t o n t h e
p le ad in gs; (2) i n f

in d in g t h at h e w as c o m p e t en t t o st an d t rial; (3) b y re f u sin g t o ad m it

e vid e n c e o f h is in n oc e n c e; (4) i n f in d i n g t h at t h e p r o s e c u tio n d id n o t f ail t o d isc l o se

e xc ulp at o ry in f

o rm at io n in vio lat io n o f B r ad y v. M ar yland , 3 73 U .S. 83 (1963); an d (5) b y

re f usin g t o c o nsid e r o t h e r alle ge d d isc o ve ry vio lat io n s. We find m e rit in t he second issue raised o n appeal and reverse and rem and for a new t rial. B ecause Newm an is receiving a new

t r ial based on t he issue of com pet ency, we n eed no t address the rem aining argum ent s on appeal. See Dimas-Martinez v. State , 2011 Ark. 515, 385 S.W.3d 238.Cit e as 2014 A rk . 7 Factual B ack

g round The record in this case discloses t hat , in lat e January 2001, officers wit h t h e Van B uren Police D epart m ent arrest ed t ransient s Mar ie Cholet t e and her boyfriend, John Evans. Alt hough Cholet t e was discharged t he next day, Evans rem ained incarcerat ed, and Cholet t e

st ayed i n the area await ing Evans’s release. On February 15, 2 001, B enn y B i l l y , a not h er

t r ansient who was known as “Indian B illy,” discovered Cholet te’s decom posing body in a tent

at his h o b o cam p l o c at ed in t he vicinit y of Lee Creek Park. Cholet t e had b een brut ally

m urdered. According to t he m e dical exam iner, she had sust ained an ant em ort em wound to her neck that m easured e ight -and-one-quart er inches long and which t ransect ed t he right

carot id art ery. Cholet t e had suffered m ult iple st ab wounds and lacerat ions t o her chest , and her nipples had been rem oved. S he also had been sliced open from her st e r num t o her pelvic bone, e xposing her int est ines. H er liver had been r em oved from h er body, one half of which

was m issing from the crim e scene. In addit i on, while alive, Cholet t e had sust ained ext ensive

t r aum a to her anus and vagina, which had been cut out of her body. Cholet t e ’s jaw had been broken, and she had r eceived significant cont usions to her left eye. S he h ad m ult iple

cont usions on her arm s t hat were d escribed as defensive wounds. The aut opsy also disclosed

t h at Cholet te’s pelvis cont ained ashes and burned d ebris. Test ing r evealed t hat Cholet t e had

a t herapeut i c c oncent rat i on of am it ript yline in her syst em , as well as a sm a l l a m o unt of alcohol. Also on February 15, 2 001, Van B uren police officers int erviewed Newm an, who was also a t rans i e nt rail rider, but w ho had grown up in the area and st ill had fam i ly who lived

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t h ere. In his st at e m e n t , N e w m a n , whose rail nam e w as “Renegade,” claim ed t hat he had
gone t o t he area r eferred t o as t he “T-cam p” w i t h C holet t e, where t hey had m e t a t rio of

m en w hom Newm an ident ifi ed a s “Psycho,” “Snake,” and “Copper.” Newm an said that Cholet t e and t he t hree m en w ere huffing paint and t hat he decided t o leave Cholet t e at t he

cam p because t he men were “crazy,” as t hey were speaking of “sat anic worship” and t he need

t o perform a “hum an sacrifice once a week.” Newm an also t old the officers that t he m en said

t h at t hey were st aying “up there by Indian B i l ly’s” cam p. Newm an denied knowing anyt h ing about Cholet t e ’s m u r d e r. H o wever, he agreed t o give blood and hair sam ples for DNA analysis.
Det ect ive B r e n t G r

i l l of t h e Van B uren Police Depart m ent int e rviewed Newm an again

on March 2, 2001. During t his int erview, Grill advised Newm an t hat he had learned from
Newm an’s uncle, Doug Ross, t hat Newm an had t a k e n C h o l e t te to Ross’s h ouse and that
Ross had d riven t hem t o t h e Sham rock Liquor St ore. Grill also inform ed Newm an t hat he had obt ained a video from t he liquor st ore dat ed F ebruary 7 , 2001, showing Newm an and Cholet t e inside t he st ore buying w ine and cigaret t es. Newm an was we a r i n g a cam ouflage

coat during the i nt erview, and G rill also asked Newm an what had happened t o t he j acket that
Newm an had b een wearing in t he video. Newm an r eplied t hat he had t raded the coat at t he
Rescue Mission, a f

acilit y n e ar t he railroad t racks where t ransient s were fed and provided a place t o spend t he night

. Event ually, Newm an confessed t o the m u rder. H e said, however,

t h at “I’ll never say I did i t

. I’ll [sic] Psycho probably did it

. Rickey Newm an didn’t do i t .”
Newm an asked t o writ e his st at em ent , and Newm an explained t h at at hom e he was known

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a s R i c key Newm an and t h at he was Renegade on t h e t rack. H e wrot e t hat he becom es “Seaco” when he blacks out and t hat he cannot cont rol “Seaco.” Furt her, Newm an wrot e

t h at when he becom es “Seaco” he will kill “anyone he see[s] as a t h reat ” and st at ed t hat he was “guilb [sic] of all t his.” Grill arrest ed Newm an following t his i nt erview, and officers execut ed a search warrant

at t he hom e of Newm an’s adopt ive m o t her to obt ain art i cles of his clot hing. The p rosecut ing

at t o rney subsequent ly c harged Newm an wit h capit al m urder. At his arraignm ent on March 27, 2001, Newm an expressed t he des i r e t o w a i v e all o f his right s and t o plead guilt y. The
circuit c o urt did n o t a c c e p t t he guilt y plea and appoint e d Robert Marquet t e, a public defende r , t o r e p r e s ent him

. At a hearing o n May 9 , 2001, Newm an inform ed t he circuit

court t h at he had fired M arquet t e. Af t e r w a r n ing Newm an o f t he d isadvant ages of selfrepresent at ion, t he c o u r t perm i t t ed Newm an t o represent him self. The circuit court left Marquet te a s s t and-by counsel and available t o Newm an i f he want ed “t o ask [Marquet t e] anyt h ing about t he law.” While in jail await ing t rial, Newm an wrot e num erous let t ers t o the c ircuit c ourt and

t o t he prosecut ing at t orney. In t hem , he at t im es pro c l a i m e d his innocence. On ot h er occasions, he professed guilt and insist ed t h at he receive t he deat h p e n a l t y. Newm an also repeat edly asked for t h e e vidence t o be t urned over t o him

. In March 2002, Newm an filed

a m o t i on seeking t he product ion of evidence, and t h e circuit court held a hearing o n t h i s request o n March 27, 2002. During t he hearing, t he p rosecut ion t endered the police report of Det ect ive Gri l l ; t he i nit ial findings from the crim e lab concerning cause o f deat h; a

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laborat ory-analysis report from t he crim e lab; t he report of Newm an’s m ent al exam inat ion; and t he medical exam iner’s aut opsy report

. The following day, Newm an acknowledged t he

re c e i p t o f 214 pages of docum ent s from the prosecut i on. The prosecut ing at t orney subsequent ly filed a supplem ent al response t o Newm an’s discovery m ot ion that included addit ional report s of laborat ory analysis perform ed at t he crim e lab and ot her p olice report s. On April 8, 2002, t he circuit court c o nduct e d anot her hearing. At t hat t im e , Newm an i n f o r m ed t he court that Marquet t e was going t o e x am ine t h e wit nesses at t rial but t hat he (Newm an) wished t o m ake a st at em ent t o t he jury. On M ay 7 , 2002, Newm an e xecut ed and filed of record a writ t e n waiver of t he right t o counsel.
On May 9, 2 002, Newm an init iat ed cont act w it h law enforcem en t officers, and he
gave anot her st at em ent

. In t his st at em e nt , Newm an said t hat he drugged Cholet t e and that he “sacrificed her” when she passed out

. H e also st at e d that h e “punched her eyes out ” wit h

a six-inch knife t hat he had bought at Walm art

. Newm an advised t hat he h ad hidden art icles of h i s and Cholet t e’s clot hing and t he knife he used i n t h e r a f t ers of a shed t hat had since burned. Newm an r ecalled t hat t he “records” st at e d that there were i t em s of food on a t able, and h e said t hat , alt hough it was not m ent ioned in t he report , there were hot dogs t hat he had purchased sit t ing on t he t able. Newm an furt her st at e d t h at he p lanned o n k i l l i n g Cholet t e and t hat h e e njoyed it

. H e said that he killed her because she was a fraud in t hat she claim ed

t o be a black-rag m em ber of t he F r e i g h t T r a i n R i ders of A m erica but t hat she was a fake because he r “ c o n cha,” a device t h at is u sed t o t i e a scarf, was m ade of t in inst ead of silver. When quest ioned, Newm an repeat edly st at ed t hat everyt hin g t hat he did t o Cholet t e was

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done inside of t he t ent

. On June 5, 2002, t he circuit court held t he o m nibus hearing. At t hat t im e, Newm an present ed t he t est im o ny of Dr. Charles Mallory, a psychologist w i t h t h e Arkansas St at e H ospit al, who test ified t hat Newm an was com pet ent t o st and t rial. Mallor y fo u n d that
Newm an was not afflict ed wit h a m ent al disease o r d e f e c t , a nd h e t est ified that he saw no signs or sym pt om s of m ult iple-personalit y disorder. Furt her, Mallory t est ified t hat , if a defendant were desirous of confessing t o t he crim e and r equest ing a jury to sent ence him to

t h e deat h pe n a l t y , t his would not of it self be an aut om at ic sym pt om of m ent al disease o r defect

. He st at ed t hat a person who is rat ional and co m p e t e nt t o st and trial can st ill have a deep and abiding convict i on t hat he wished t o p a y f o r his crim e. B ased o n Mallory’s

t e st im ony and his report , t he circuit c ourt found t hat Newm an was com pet ent t o st and t rial.
Newm an’s t rial b egan and c oncluded on June 10, 2002. Newm an insist e d on wearing jail clot hing and shackles during t he t r i a l

. The prosecut i on p roduced t he test im ony of t he

o f f i cers involved in t he invest igat ion; t est im ony from the m edical e xam i ner; t est i m o n y

recount ing Newm an’s st at em ent s and co n f e s sions; phot ographs o f the crim e scene and of Cholet t e’s body, bot h as she was found in t he tent and at t he aut opsy; t est im ony as t o blood splat ters found in t he tent ; and t est im ony t hat hairs m icroscopically sim ilar t o Cholet t e’s were found on Newm an’s sweat pant s, gloves, and boot s; and t est im ony t hat one h ead hair t hat was

m icroscopically sim ilar t o Newm an’s h air was cont ained in t he vacuum sam ples t aken from

a sleeping bag and com fort er found at the crim e scene. In addit ion, D r. Mallory t est ified that
Newm an was fit t o proceed and t h at he could appreciat e t he crim inalit y o f his conduct at t he

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t i m e of t he m urder.
Newm an elect ed t o t est ify. H e said: What happened, uh, I cam e i nt o t own, I met up wit h t his lad y , s h e was wearing a black rag and a t i n concha, she was a fake. She claim ed t hat she hurt one of our brot hers during a lit tle alt erat i on [sic] wit h her and her husband, uh, I went across t h e b ridge and I bought her alcohol. I d rugged her up. I got her drunk, and I killed her. Cut her from h ead t o t oe. I k illed her m ore than o nce, I killed her unt il I got t i red of killing her, unt il the passion of blood went away. Then I left it lay like a d og and walked away. Washed m y hands of t he whole affair.
I killed her. When I t old Officer Gril l t h a t Psycho killed her, t hat was a lie. According t o all t h ese expert s, t here is no Psycho. I know t here’s a r age i n m e, I know aft er a c ert ain point and I am very capable of hurt ing real bad, and t h ere i s ot h er cases r ight here in t his t o wn where I’ve hurt people real bad. I d o n ’ t know why t hey wasn’t brought up. A fact ’s a fact

. I g e t headaches. I’ve p robably been having them for t he last nine or ten years or so; t he m i l i t a r y don’t have not hing t o do wit h t his. I did get t he headaches even when I was in t he service. 1
The t rut h is t he only just ice in t his case is t he deat h penalt y, and as ladies and gent lem en of t he jury, you got to t hink t hat could have been y o u, your daught er, anybody you might know. It just had t o be som ebody. It h appened t o be som ebody claim ing t o be who she wasn’t

. I don’t know. Y ou probably don’t underst and gang act ivit y, b u t w e g o t our own t urf we got t o prot ect

. Garbage’s got t o be t aken out at all cost s. If you want t o ask a few qu e s t i o n s , I’ll t ell you. I don’t know how t o t ell you I’m guilt y. I did it period. During t h e p r osecut or’s closing argum ent , Newm an b ecam e disrupt ive when t he prosecut or suggest ed t hat Newm an killed Cholet t e as part of a sex crim e aft er she reject ed his advances. As a result , t he circ u i t c o u r t o r d ered him t o be gagged wit h duct t ape. Subsequent ly, t h e jury r et urned a verdict of guilt y. During t he sent encing phase of t rial, t he

1 N e w m an se r

ve d in t h e m arin e s f

o r o ve r o n e ye ar an d re c e ive d an h o n o r ab le d isc h arge
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prosecut or present ed evidence t hat Newm an had been c onvict ed o f second-degree bat t ery in
1988. Newm an offered no evidence in m it i gat ion. Inst e ad, he addressed t he jury wit h t he following st at e m ent : I , R i c k e y Newm an, freely t ell t he jury t hat I killed t he lady in cold blood. I first cut her a lit t le at a t im e t o m ake it hurt , and t hen I st abbed her for fun and t o wat ch her bleed. Then I cut her from her neck t o her groin, and t hen I t ook som e of h er insides out and cooked som e of h er o rgans t o see how long they would cook.
Let ’s see—t ake t o cook—how long i t t akes t o c ook t hem

. I e n joyed m urdering her very m uch and I had a lot of fun killing her and m aking h er hurt r eal bad. This t ells you that I am guilt y of murder. The f irst t im e I saw her I knew I was going t o kill her and m a k e her hurt r eal bad w it h a lot of pain. H er fam ily needs a lit t le peace and com fort in t heir lives, and t he only peace and com fort her fam ily will ev e r have is t o put the one t hat killed their loved one t o deat h....

. . . . The only verdict t h at will serve t his h orrible crim e i n t he m u t ilat ion of t he lady I killed—for t he lady’s peace, is for her killer t o be put t o deat h in t his case. I know t he jury will com e back wit h the right dec i s i on.—And the decision is yours, j ury, and o n ly the jury’s. I am —I am m yself asking for t he deat h penalt y and ask for punishm ent in t his capit al m urder case.

. . . . I w ill n o t a p p e a l on t he right verdict of deat h , t he only decision t here i s t o com e back wit h, and I will ask for a fast execut i on day. Thank you, ladies and gent lem en of t he jury, I k n o w y ou will not —I know you will do t h e right thing for her fam ily, and t he t axpayers, and yourself. The right just ice for all is d eat h. Com e back wit h t he right decision. Respect fully, Rickey Newm an, st one-cold killer. Thank you, ladies and gent lem en. Aft er deliberat ions, t he jury ret urned a verdict of deat h. Accordingly, t he c ircuit court

ent ered a judgm ent and com m it ment order reflect ing Newm an’s c onvict ion of capit al m urder
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and sent ence of deat h. Subsequent ly, an app e a l w as lodged i n this court

. While t he appeal was pending,
Newm an filed a pro se p e t it ion seeking t o waive t he appeal of t h e judgm ent so t hat t he

sent ence cou l d be execut ed i m m e diat ely. Newman v. State , 350 Ark. 5 1, 84 S.W.3d 443 (2002) (per curiam ). This c ourt denied t he req u e s t , h olding t hat appellat e review of t he
convict ion and sent ence was m andat ory in a d eat h-penalt y case pursuant t o A rkansas Rule of
A p p ellat e Procedure–Crim inal 10 (2002). Id

. We subsequent l y affirm ed New m a n ’ s convict ion and sent ence. N ewman v. State , 353 Ark. 258, 106 S.W.3d 438 (2003). Followin g t he i s suance of t his court ’s m andat e, t he circuit court held a hearing, pursuant t o A rkansas Rule of Crim inal Procedure 37.5(b) (2002), t o c onsider the appoint m ent of c ounsel t o represent Newm an in post c o n v i c tion proceedings. See State v. Newman , 357 Ark. 39, 1 59 S .W.3d 309 (2004) (per curiam ). During t he h earing, t he circuit court advised
Newm an of his right s wit h respect t o Rule 37.5 relief, specifically inform ing Newm an that
any w aiver of t hose right s and Newm an’s willful failure t o pursue re l i ef under Rule 37.5 would result in t he deat h sent ence being carried out against him

. Id

. In sworn t est im ony to

t h e c i rcuit court , Newm an st at ed t hat he wished t o waive his r ight s t o an at t o rney and to waive his right t o post convict ion relief. Id

. Th e r e a f t e r , t he c ircuit c ourt ent ered an order concluding, in relevant part , t hat Newm an was com pet en t t o w a i ve his right to post convict ion relief. Id

. The St at e subsequent ly filed a pet it ion request i ng t h at t his court lodge t he record o f

t h e waiver proceedings and r eview t he circuit court ’s o rder. W e d enied t he St at e’s pet it ion,

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due to Newm an’s st at em ent during t he w aiver h earing that he was under t he influence of his

m edicat ion, nam ely Thorazine. State v. Newman , 355 Ark. 265, 132 S.W.3d 759 (2003) (per
curiam ). Accordingly, w e r e m a n d e d t he m at t er for the sole purpose of having t he circuit

court o rder t he A rkansas St at e H o spit al t o conduct an evaluat ion of Newm an t o det erm ine whet her he was com pet ent to proceed w i t h t h e R u l e 3 7.5 hearing and t o w aive his right s under t hat rule. Id

. Pursuant t o our rem and , D r
. Mallory conduct ed an exam inat i o n of Newm an and concluded t hat Newm an did n ot suffer from any m ent al disease or defect and t hat he had t he capacit y to m ake a knowing, int e lligent , and volunt ary waiver of h is right t o have an at t orney advise h im o n his post convict ion right s. Newman , 3 57 Ark. 3 9, 159 S .W.3d 309 (2004). Following receipt o f Dr. Mallory’s report and a f t er hearing Newm an’s own test im o ny regarding t he waiver, as well as Newm an’s t est im ony t hat he agreed wit h D r
. Mallory’s det erm inat ion of com pet ency, t he circuit court found t hat Newm an was com pet ent and had knowingly and volunt arily waived his post convict ion right s under Rule 37.5. Id

. We affirm ed

t h e circuit court ’s decision. Id

. Lat er, t hrough appoint ed counsel, Newm an filed a p et it ion for federal habeas corpus

r e l i ef in t he U nit e d St at es Dist rict Court for t he West ern D ist rict of Arkansas. At h e a r i n g s before t he federal dist rict court , Newm an present ed new evidence t hat Dr. Mallory, t he sole
wit ness at Newm an’s st at e com pet e ncy hearings, used im proper test s t o det e rm ine Newm an’s

c o m p e t e n cy; im properly adm inist ered Newm an’s t est s; and incorrect l y graded t he t est h e adm inist ered t o Newm an, result ing in a higher IQ score. See Newman v. Norris , 597 F. Supp.

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2d 890, 895 (W.D. Ark. 2009). In addit ion, Newm an present ed evidence, not considered by

t h e st at e court s regarding the reasonableness o f his legal decisions at t he t im e of his t rial and appeals, as well a s evidence not considered by t h e st at e court s regarding his claim of act ual
innocence. Id

. Accordingly, t h e f ederal dist rict court concluded t hat Newm an had failed to exhaust all of his claim s in t h e st at e court s and direct e d Newm an to ret u rn t o st at e court to pursue furt her post c onvict ion relief. Id

. Newm an t h e n pet it i oned t his court t o reinvest jurisdict ion in the circuit court t o allow him t o seek a w r i t o f error coram nobis. Newman v. State , 2 009 A rk. 539, 354 S.W.3d 61.
In his pet it ion, Newm an alleged t hat he was i n c o m p e t e nt at t he t im e of trial and t hat t he prosecut or had w i t hheld exculpat o r y e v i dence in violat ion of B r ady v. Maryland , supra
. Id

. N e w m an acknowledged t hat he had sought t he deat h p enalt y in t his case and t hat he h a d

at t e mpt e d t o w aive h i s d i r e c t a p p eal. Id

. H owever, h e st at ed t hat h e was not m ot ivat ed to

secure a deat h sent ence because of rem orse or t h e desire to take r esponsibilit y for a w rong he had com m it t ed. Id

. On t he cont rary, he claim ed t hat he was ent i r ely innocent of t he m urder. Id

. F urt her, Newm an maint ained t hat he had wished t o be execut ed because his im paired

t h inking m ade him believe t hat deat h was m ore bearable t han cont inuing t o live. Id

. This court grant e d Newm an perm ission t o p ursue coram nobis relief on bot h grounds.
As t o t he issue of com

pet ency, we held:
We agree t hat Newm an appears t o have a m erit orious claim regarding his incom pet ence at the t im e of t rial. Dr. Mallory provided t he o nly evidence of Newm an’s com pet ency t o st and t rial. Subsequent ly, in federal dist r ict court , Dr. Mallory adm i t t ed t hat he m ade significant sco r i n g errors when adm inist ering t est s t o Newm an. These s coring errors u nderm ine t he validit y and r eliabilit y of Dr. Mallory’s t est im ony at t rial. Dr. Mallory’s declarat ion of
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Newm an’s com pet e nce is suspect , as i t w as based upon flawed d at a. This, t o g e t her wit h Newm an’s e xhibit s, affidavit s, and p roposed t est im ony in support of his pet it ion, warrant grant ing perm ission for leave of t he court in t his case. Id . at 10–11, 354 S.W.3d at 67. Regarding t he B rady claim s, t his court st at e d : B ased upon t he r ecord before us, w e conclude t hat it appears t hat t h ere were possible B rady violat ions in t h i s ca s e. We are m indful of Newm an’s confessions; however, Newm an has present ed e vidence t h a t he m ight have been incom pet ent when he m ade t he confessi o n s
. A s s u ch, we are in no posit i on t o det erm ine whet her, had t he suppressed evidence been disclosed t o t h e defense and present ed at t rial, t h ere is a r easo n a b l e p r o babilit y t hat t he judgm en t of convict ion would not have been r endered. This det erm inat ion m ust first b e m ade by t he circuit c ourt

. We add t hat , for t he reasons previously st at ed, Newm an exercised diligence in his c laim of B rady violat i ons. B ased upon t h e foregoing, we grant Newm an’s p et it ion t o r einvest jurisdict ion in t he c i r cuit court to seek a writ of error coram n obis on his claim o f B ra d y violat ions. Id

. at 18, 354 S.W.3d at 71. B ased on t hese findings, we grant ed perm ission for Newm an to file a pet it ion for writ o f e rror coram nobis lim it ed t o t he claim s of w het her he was com pet ent

t o st and t rial and whet h e r t here were B rady violat i ons in his case.
U pon ret urning t o circuit c ourt , Newm an filed a t h irt y-six-page pet it i o n for writ of

error coram nobis. I n addit ion, Newm an subm it ted a m ot ion for judgm e nt on t h e pleadings
in which he argued t hat t he r e c o rd of t rial d em onst rat es t h at t he t rial judge should have

ent ert ained serious doubt s as t o his com pet e ncy to st and t rial, such t hat t he t rial judge should have h eld a hearing on the issue. Furt her, Newm an argued t h at t h e t rial j udge’s failure t o do

so ent it led him

t o a new t r ial due t o t he denial of procedural due process. The circuit court denied t he m ot ion for judgm ent o n t h e pleadings by an order dat ed March 19, 2010. The circuit court held a hearing o n t he coram nobis p et it ion on March 10

t h rough 18, 2 011. At t he hearing, t he circuit court declined t o consider evidence of
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Newm an’s innocence t hat he argued was pert inent t o t he issue of m ent al com pet ency and t he
B r ady c laim s. The court also e xcluded from it s considerat ion t hree a l l e ged B r ady violat ions because t hey were not am ong those present ed t o t his court in grant i n g l eave t o proceed wit h

cora m n o b i s relief. S ubsequent to t he hearing, but prior t o t he circuit court ’s ent ry of an order, Newm an filed a m ot i on t o supplem ent t he record wit h addit ional evidence regarding

one o f t he B rady claim s. The circuit court denied this m ot ion on July 14, 2 011, and t he court

ent ered an order d enying t he pet it ion for writ of error coram nobis o n July 15, 2011. I n it s order, t he circuitcourt found t hat Newm an h ad b een com pet ent t o st and t rial and t hat t he prosecut ion did n o t fail t o disclose exculpat ory evidence. I t is from t his order t hat Newm an prosecut es t h e inst ant appeal. Standard of Review Th e St at e m aint ains t h at t he circuit court ’s decision m ust be judged under t he subst ant i al-evidence st andard o f revie w
. H o w e ver, t he St at e is m i st aken. T he subst ant i alevidence st andard i s the t est t hat prevails o n r e v i e w of a circuit court ’s com pet ency det erm inat ion m ade at t rial. See Th essing v. State , 365 A rk. 384, 230 S.W.3d 526 (2006). B y

cont rast , t his is an appeal from t h e circuit court ’s denial of coram nobis relief. The st andard of r eview for t h e denial of a pet it i on for writ of error coram nobis is whet her the trial court abused it s discret ion in grant ing or denying t he writ

. Mag by v. State , 348 A rk. 4 15, 72 S.W.3d
508 (2002) (cit ing S tate v. L arimore , 341 Ark. 397, 17 S.W.3d 87 (2000)). A n abuse of discret ion o cc ur s w hen t he circuit court act s arbit rarily or groundlessly. Isom v. State , 356 Ark. 156, 148 S.W.3d 257 (2004). The t r i al court ’s findi n g s of f a c t , o n which it bases it s

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decision t o grant or deny t he p et it ion for writ of error coram n obis, will n ot be reversed on appeal u nless t hey are clearly erroneous or clearly against t he preponderance of t h e evidence.
Gree n v. State , 343 Ark. 244, 33 S.W.3d 485 (2000). A finding is clearly erroneous when, alt h ough t here is evidence t o support it , t he appellat e court , aft er r e v i e w ing t he ent ire evidence, is left wit h t he d e fi nit e and firm convict ion t hat a mist ake has b een c om m it t ed. Davenport v. State , 2013 Ark. 508, ___ S.W.3d ___. Competency to Stand Trial
On appeal, Newm an cont ends t h at t he c ircuit c ourt ’s finding t hat he was com pet ent

t o st and t rial is clearly erroneous and t hat t he circuit court ’s denial o f coram n ob i s relief on

t h e issue of com pet e ncy const it ut es an abuse of discret ion. Newm an argues t h at t he circuit

court f ailed to t ake int o account t he t est im ony o f his expert wit nesses and t heir opinions that he lacked t he capacit y t o m ake rat ional, self-prot ect ive decisions. H e al s o assert s t hat t he
circuit court m isplaced it s reliance on t he t est i mony of t h e St at e’s expert wit ness. In support of his clai m of incom pet ency, Newm an present ed the t est im ony of Dr. Pablo St ewar t , a forensic psychiat rist

. S t ewart conduct ed a tot al of four clinical int erviews
wit h Newm an: twice in Oct ober 2 006, once in June 2007, and once again i n February 2011.
H e diagnosed Newm an w it h chronic post -t raum at ic st ress disorder (PTSD); m ajor depressive diso r d er ; cognit ive d

ysfunct ion, especially as it involves execut ive f unct ioning; and polysubst ance dependence. S t ewart t est ified that t here was a synergy bet ween subst ance abuse and PTSD and d epression in that persons afflict ed wit h t h e s e d i s o rders self-m edicat e wit h drugs t o address t h e sym pt o ms of t he diseases. St ewart based t he diagnosis of PTSD on t he

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recurring t raum a Newm an experienced as a child, which he called t he “m ost depraved that
I’ve worked wit h.” St ewart recount ed t hat New m a n w a s r aised in abject povert y b y a neglect ful m ot h er who m arried a m an who “t e rrorized” t he fam il y f o r s e v en years of
Newm an’s young life. Newm a n w i t n e s s e d t he b eat ings o f h is m ot her and h is siblings, and he also was subject ed to repeat ed, “m e rciless” b e a t ings and t ort ure, which included being chained out side t o a t ree or a st ake, som et im es overnight

. H is m ot her and her husband also left t h e children alone t o fend for t hem selves wit hout f ood for days or weeks at a t im e. H is

m ot her died in t he hom e when he was eleven or t welve years old aft er a painful, year-long bat t le w it h cancer. St ewart t est ified t hat Newm an would becom e agit at ed and anxious when

t o pics cam e up t hat r em i nded h im of t he t raum a, and h e s a i d that Newm an’s react ions to

t h ese associat i ve m e m ories were reflexive and aut om at i c. Wit h regard t o the diagnosis of m ajor depression, St ewart said that t he feat u res of t his disorder were a sad or irrit able m ood and the la ck o f a b ilit y t o experience pleasurable

act ivit ies. H e said that persons who have t h is illness experience a n ex c es s i v e sense of

wort hles s ne s s and guilt

. St ewart said t hat t he illness result s in cognit ive d ist ort ions and t he inabilit y t o think c learly and rat ionally. He said t hat anot her sym p t om of m ajor d epression
is chronic t hought s of deat h and suicidalit y. S t e wart st at ed t h at Newm an made it very clear

t h at he want ed t o die. S t ewart believed t hat Newm an’s desire t o be execut ed and his suicidal ideat ion were sym pt om at ic of the cognit i ve dist ort ions creat ed by his depression. He said that

t h is desire was no t a n i n f o r m ed c hoice but t h at it was r at her a reflect ion of his cognit ive
im p airm ent s superim posed wit h his psychiat ri c d i s o r d ers. H e test ified t hat Newm an’s

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c o ndit ions and i m pairm ent s affect his abilit y t o m ake rat ional, self-prot ect ive decisio n s a n d

t h at his depression and PTSD im pact him in a way t h at causes him t o have t he inabilit y, as opposed t o an unwillingness, t o look at a sit uat ion and appreciat e it for what it really is.
St ewart st at ed t hat Newm an p ossessed only a superfic i a l underst anding of t he proceedings and t hat h e d id n o t have a rat ional underst anding of h is legal sit uat i o n. St ewart rescored t h e t hree-part MacArt hur Com pet ency Assessm ent T ool adm inist ered t o Newm an by Dr. Mallory in 2002 by using t he raw dat a provided by Mallor y
. I n t h e u nderst anding

sect ion of t he t est , S t ewart arriv e d a t a score of 11, whereas Mallory gave Newm an a score of 1 6. A score of 11 indicat es t h at Newm an had a fact ual underst anding of t he legal syst em in general. On t h e reasoning sect ion, St ewart assessed a score of 8, while M allory gave a score

o f 1 3. A score of 8 places Newm an in t he clinically significant im pairm ent range f o r

r e a s o n ing, which corresponds t o t he abilit y-t o-assist -counsel prong o f t he t est for c o m p e t e n c y
. Therefore, St e wart c oncluded t h at Newm an w a s cl i nically and significant ly im paired in his abi l i ty, as opposed to an unwillingness, t o assist counsel. In t he appreciat ion sect ion of t he

t e st , St ewart not ed a glaring error com m it t e d by Mallory in t hat Mallory indicat ed t hat one of t h e quest i ons was “not applicable;” t hus he did not give a score, which result e d i n Mallory arriving at a score of 8 or 10 on t his sect ion. St ewart said t h at the manual does not give t he discret ion t o pick and choose t he quest ions t hat are asked. Even so, St ewart test ified t hat a

score of 8 p l a ces Newm an i n the clinically significant im pairm ent range. When St ewart

r e scored t h is sect ion, he arrived at a score of 4, m e aning t hat Newm an was im p aire d i n h i s

rat ional underst anding of his l egal sit uat ion. St ewart t est ified t hat , in his opinion, Newm an

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was n ot com pet ent t o st and t r ial. H e felt , however, that Newm an’s condit ions were t reat able. Addit ionally, St ewart not ed t hat Newm an w a s not capable of being i nt erviewed by him wit hout b ecom ing agit at ed, p art icularly when being quest ione d a b o ut his childhood.
St ewart t e st ified t h at Newm an once a t t e m p t e d t o fire b ot h him and Newm an’s at t orney during one of t he int erviews. H e not ed also t hat Newm an had not been w illing t o be
int erviewed by Dr. Gray from t he st at e hospit al, and St ewart said that t his decision was not

rat ional and was indicat ive of ongoing m ent al illness.
Dr. Ricardo Weinst ein, a forensic neuropsychologist , also t est ified on Newm an’s behalf. A lt hough N e w m an refused t o m e et wit h Weinst ein in advance of t h e coram nobis hearing, Weinst ein had p r eviously int erviewed Ne w m an t wice in Oct o ber 2005. Aft er having Newm an com plet e a bat t ery of test s, Weinst ein concluded t hat Ne w m a n has significant cognit ive deficit s and brain dysfunct i on wit h p art icular com prom ise t o t h e front al lobes of t he b r a i n. U sing t he Wechsler Adult Int elligence Scale (WAIS-III), Weinst ein assessed Newm an’s full-scale IQ at 67, a score t hat p laced Newm an in t h e r ange o f int ellect ual disabilit y. Newm an scored a 55 on anot her IQ t est

. According t o Weinst ein, t h e result s of

t h ese t est s dem onst rat ed that Newm an had a com prom ised working m em ory. Weinst ein did

not assess Newm an’s adapt ive-funct ioning abilit ies t o det erm ine whe t h er he was m ent ally

ret arded because Newm an w o uld not perm it it

. Newm an also at t ained l ow s co r e s on t he Wide Range Achievem ent Test on reading, spelling, and arit hm et ic, and his scores o n t his t est placed h im b elow t h e first -grade level. Newm an also did poorly on t h e Facial Recognit i on Test t h at is aim ed t o i d e n t ify problem s in appreciat ing social cues. On t he Ray Com plex

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Figure T est , Newm an’s perform ance indicat ed t hat he lacked t he abilit y t o plan and to det erm ine what is relevant and w hat is not relevant

. On a t est designed t o m easure execut ive funct ioning, Newm an scored t hree st andard deviat ions below t he m ean, w hich signified that less t h an one percent of t he populat ion o bt ain a score t hat low. Weinst ein not ed that
Newm an showed no signs of m alingering and t hat Newm an’s effort in com plet ing t he t est s suggest ed t hat he was perform i ng t o t he best of his abilit y. Weinst ein concurred in the diagnoses o f PTSD and m ajor depressive disorder. H e said

t h at t hese condit ions lim it ed Newm an’s abilit y t o t hink and t hat persons suffering from t hose condit ions do not perceive things correct ly and d o not process inf o r m a t i on adequat ely.
Weinst e in also opined t hat Newm an does not underst and the m eaning of a right and t hat he h a s a l i m it ed abilit y t o underst and court proceedings. Weinst ein t est ified t hat he ask e d
Newm an about t he crim e, and Weinst ein said that Newm an told him t he sam e t hing t hat he had first told t he police, nam ely t hat h e h ad left Cholet t e alive at the T-cam p. Weinst ein

st at ed t hat Newm an inform ed him t hat he could no t c o m m it suicide, as he considered it cowardly, and t hat he adm i t t ed guilt only b ecause he w ant ed to be killed and put out of his

m isery.
Weinst ein furt her t e st ified t hat Newm an was not c apable of m aking rat ional decisions and that he was not aware of t he consequences o f his c hoices. H e sa i d t h at Newm an’s
i m p airm ent s have an im pact on his abilit y t o m ake decisions t hat are self-prot e c t i v e
. U lt im at ely, Weinst e in concluded t hat Newm an was not com pet ent t o st and t rial:
In Mr. Newm an’s capit al t rial in 2002, he wa s s uf f e r i ng f rom m ajor m ent al disease in t he form

of m ajor depression; post t raum at ic st r ess disorder; and he

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was suffering from cognit ive lim it at ions. So, he had bot h m ajor m ent al illness and a condit ion t hat wou l d lim it his capacit y t o underst and cert ain concept s. I d on’t t hink he h ad t he capacit y t o con s u l t w i th counsel wit h a reasonable degree o f rat ional underst anding, and t o have a rat ional a nd fact ual underst anding of the proceedings a g a i n s t him

. I t hink the m ent al disease and disorder t hat he e xperiences im pinging his abilit y, as we said before, trust ing an at t o rney; com m unic a t ing wit h an at t o rney; following legal proceedings; int ervening in a logical, rat ional m at t er ; com m unicat ing inform at ion in a logical, rat ional m anner t o t he at t orney; t r ust ing t he at t orney. Finally, Weinst ein opined that Newm an has t he capacit y t o be rest ored t o c om pet ency wit h
proper m edicat ion and psychiat ric int ervent ion.
Dr. Clint Gray, a psychiat rist at t he st at e h ospit al, t e st i fied f or t h e St at e. Gray was not able t o int erview Newm an because Newm an refused t o be ev a l u a t e d b y him , and t his was Gray’s first at t em p t at perform ing a ret rospect ive com p et ency evaluat i on. In his t est im o ny, G r a y did not disput e Weinst ein’s assessm ent of Newm an’s cognit ive im pairm ent s and l o w int ellect ual funct ioning. H e did not disagree wit h W e inst ein’s conclusion t hat Newm an was

not m alingering. H e also agreed wit h St e wart ’s d i a g noses of PTSD and depression. Gray said, however, t hat the presence of t hese disorders does not aut om at ically mean that Newm an

was incom pet e nt t o st and t rial. In form ing h is opinion, Gray focused on t he num erous let t e rs

t h at Newm an had writ t e n be f o r e t r i a l , as he said t hat t hey gave insight int o Newm an’s abilit ies at t he tim e of t rial. He t est ified t hat t he let t ers were c o herent and goal-direct ed. Gray not ed t hat Newm an spoke of his const it ut ional right s, indicat ing t hat Newm an knew

t h at cert ain t hings are guarant eed under t he law. Gray observed t hat Newm an d e m a n d ed

e v i d e nce f

rom t h e crim e lab and expressed t he i dea t hat he was ent it led t o t he inf o r m a t i o n because he was act ing as his own at t orney. In ot her let t ers, Newm an kept asking f or evidence

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t o be p rovided t o him , and he m e nt ioned t hat he was writ ing his own opening and closing

st at em ent s. A ccording t o Gray, t hese request s indicat ed t hat Newm an was m aking reasonable preparat i o ns for h is t rial. Gray m ade t he observat ion from o ne l e t t e r t hat Newm an, in refe r e nc e t o a crim e-lab report , underst ood t hat the m icroscopic sim ilarit y of hairs was not

a basis for personal i d e n t i f i c a t i o n and t hat Newm an was also aware t hat t here was no fiber evidence connect i ng him w it h t he offense. In yet a n o t he r let t er, Newm an asked why no DNA t e st s had been perform e d on t he blood, which Gray considered reasonable and rat ional.
Newm an also wrot e t hat his fam ily want ed him t o “play like I’m m e n t ally ill,” but Newm an

st at ed t h at he would not do so, which m eant t o Gray t hat Newm an underst o od that t his was

a defense opt ion. In a l et t er writ t en close t o trial, Newm a n spoke o f asking t he jurors quest i ons about whet h e r they b elieved in t he d eat h penalt y. Gray t est i fied t hat t he let t ers, as well as Newm an’s st at em ent s in court , dem onst rat ed t h at Newm an underst ood t hat he was charged w it h capit al m urder and t hat t h e p e nalt y for t hat offense was d eat h. Finally, Gray relied on a let t er Newm an had writ t en t o t he V et erans Adm i nist rat ion advising of his sit uat i on and want ing t h e b e n e f

it s to go t o his m ot her. In addit ion, Gray referenced t he m edical records from

prison not ing t he absence of psychosis. Gray was also i m pressed by Newm an’s abilit y t o undergo evaluat ions and t o com plet e

t h e psychological t est s. H e t est ified that Newm an’s abilit y t o give f ull effort on t he t est ing suggest ed t hat he could assist his at t orney at t rial. Gray t est ifi e d t h a t , a lt hough Weinst ein scored Newm an’s IQ at 67, no t e st ing for adapt ive funct ioning had been done for a d iagnosis o f m ent al ret ardat ion. H e said, however,

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t h at t h ere was evidence t hat Newm an’s adapt ive funct ioning was good in t hat , even t hough he was a vagrant , he fed him self; showed up at t he hom eless shelt er at appropriat e t im es; and

t h at h e m anaged t o get his governm ent check every mont h. H e did say, h owever, t hat t here

was room for disagreem ent as t o whet her Newm an’s adapt ive abilit ies would place him in t he

cat egory of being m ent ally ret arded. Gray also r escored the MacArt hur Com pet ency Assessm e nt T ool given by Mallory.
In t he underst anding sect ion, he gave a score of 13 or 15, w h i ch w o u l d fall in the m inim al

or n o-im pairm ent r a n g e
. For reasoning, he gave a score o f 10, which indicat es m ild
im p airm ent

. For appreciat ion, he gave a score of 6 o r 8, which falls wit hin t he clinically significant im pairm ent r ange. Overall, Gray’s o pinion was t hat Newm an had t h e capacit y to underst and t he proceedings and t o effect ively assist in his own defense at t he t im e of t rial.
On cross-exam inat i on, Gray st at ed t h at it was not his job t o d e term ine if Newm an

m ade poor choices, but h e said t hat som eone can m ake poor decisions and st ill b e f it t o st and

t r ia l

. G r a y acknowledged t hat m ajor depressive d isorder is a serious m e nt al illness t hat can

cause a dim inished capacit y t o t hink and t o concent rat e and that recurring t hought s of deat h

a n d suicide are com m on am ong pat ient s who have t his disorder. H e agreed t hat severe depression caus e s co g nit ive dist ort ions and t hat sufferers of t he disease have skewed percept ions of realit y. Gray also agreed t h at PTSD is a debilit at in g c ondit ion. H e

a c knowledged that a person wit h cognit ive i m pairm e nt s in execut ive funct i oning h a s a n im p aired a b i l it y t o t hink abst ract ly and difficult y i n assessing t he consequences of different behaviors. When asked abo u t Newm an’s d esire f or t he deat h p enalt y, Gray said that

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Newm an also gave a reason t hat was different from depression, which w as just ice for t he
vict im ’s fam ily. H e acknowledged t hat t he request for deat h could be a product of d epression, but he st at ed t hat it could also be a reasonable request for just i ce. Gray agreed that , if a desire for e xecut ion was a product of m e nt al illness and cognit ive dist o rt ions, a person m aking that request would not be com pet ent t o m ake t h at decision. Gray said t hat m any of Newm an’s
sym p t om s were consist e nt wit h depression and PTSD but t hat t he sam e sym pt om s could also be at t ribut ed t o Newm an’s personalit y st yle. The circuit court also heard t he t e st im o ny o f Marquet t e. In his t est im ony, Marquet t e

st at ed that he had received a t ip from a person at t he m ission indicat ing t hat som eone else had

com mit t e d t he m u r d e r
. This inform at ion led him to believe t hat Newm an m ay have
wit nessed t he murder but t hat he was not t he act u al killer. Marquet t e t est ified t hat , despit e Newm an’s inst ruct ions t o t he cont rary, he began t o invest igat e the t i p but learned t hat t he
person he was invest igat ing had d ied. H e said, however, t hat Newm an was not allowing him

t o do anyt hing to help and t hat h e w as sure t hat Newm an would not h ave allowed him t o put

t h e person on t h e w i t ne s s s t and, even if he had been able t o locat e the m an. Marquet t e

t e st ified t hat Newm an did not perm it t he h iring of an invest igat or and t h at Newm an refused

anot her psychological evaluat ion. H e also said t hat Newm an did n ot want him to int erview
any wit nesses. Marquet te furt h e r t est i fied t h at he m oved for a direct ed verdict at t rial even

t h ough Newm an had t old him not t o m ake t he m ot ion.
In addit ion t o t he t est im ony, we also not e t hat Newm an h ad several out burst s during

t h e coram nobis hearing. F or exam ple, he int e rrupt ed St ewart ’s t est im ony, called St ewart a

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“liar,” and asked t hat he be rem o ved from t he w it ness st and. At one point , Newm an did not

a p p ea r to know whet her he was in st at e or federal court

. During h is exchange w i t h t h e circuit court , Newm an st at ed, She [Newm an’s counsel] walked int o m y l ife, and m y whole life changed. And i t ’s just , I’m working t o die, and she’s working – I ain’t act ually figured o ut what she’s working on, but I t h i n k s h e – l i k e I said, I’m working t o die, and she’s working against m e t o die. They’re t aking m y choice away. B ut I guess t h at ’s t he law. I d on’t underst and why t he law says I can’t die. That ’s t he whole point , I can’t – can’t grasp. It ’s m y choice.
On anot her occasion, Newm an asked for his execut ion and t o end the proceedings. During

t h e course of t his out burst , he said t he following:
I t hink t he law, t he way I u nderst and – you see, I ain’t real sm art

. Ms. B rain’s [Newm an’s counsel] got m e a dict ionary and if you wat ch her – I try t o w rit e how m uch words down I don’ t underst and. I go back t o my cell, and I look t h em up and t ry to figure out what ’s going on i n this c ourt room
. And I don’t h a v e n o idea. And I c an’t hear t hese people half t he t im e. And I’m rea l l y confused right n o w
. I really t hink m y right s is being violat ed by t his c ourt

. I know you ain’t violat ing, but t hat ’ s t h e way I f eel. I t hink you should let m e die right now. I m ean, I t hink you should end this because I’m asking t o end it

.

. . . . I d on’t underst a n d w h a t t hey’re t elling m e. I don’t underst and what t hese people are t rying t o t e ll m e. I d on ’ t un d erst and w hat t hey’re t rying t o do f or m e. They t ake away m y right t o die.

. . . . The law books t a l k a b o u t s u i cide. There’s som e doct o r t hat , e r, he calls it assist e d suicide. And it says suicide is u p t o t he person. Now, I ain’t st anding

– I ain’t st anding here – I, I’ll never – I will not adm it suicide – I ain’t saying I’m gonna adm it suicide f

or t his. To m e, a suicide is weak. That ’s why t hey have you t o k i l l m e , Y our Honor, t o kill m e, or these p eople, w hoever, kill m e ‘cause suicide is w eak. A m an who com m it s suicide is really com m it t i n g suicide because h e ’s decided and it ’s showing h e c an’t deal wit h socie t y
. That ’s why
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suicide people – t hat ’s w h y t hey t ake t h eir own lives. A m an t hat is execut ed st ands up. I ain’t m essing wit h suicide. Y ou killing m e. I t ’d be different if I put t h e needle in m y own arm
. That ’s suicide

. I’m being legally execut ed by t he St at e; am I right ? The record also discloses t hat t he circuit court allowed b reaks during t he course of t he hearing when Newm an int errupt ed t he proceedings. Aft er t aking t h e m a t t e r u n der advisem ent , t h e c ircuit court subsequent ly issued an order finding t hat Newm an was com pet ent t o st and t rial in June 2002. The court credit ed

t h e t est im ony of Dr. Gray that , even if Newm an h a d an IQ of 67, he could st ill be

com p et ent

. B ased o n Gray’s t est im ony and the court ’s own observat i o ns of Newm an during

t h e hearing, t he court found t hat “Dr. Gray’s opinion m ost appropriat ely coincides wit h t he evidence t hat t h e C o u rt considered during t he hearing.” Wit h regard t o Newm an’s dem eanor, t he court o b served t hat he was “quiet , apologet ic, m ade not es, discussed m at t e rs wit h his at t orney, m ade st at em ent s t o t he Court about his want s and desires, and only becam e

v e r y u pset , when m e nt ion was m ade of m ent al ret ardat i on, and any averm ent was m ade relat ive t o his being m olest ed as a child.”
It is well est ablished t h at t he Due Process Clause of t he Fourt e e nt h A m endm ent prohibit s the crim inal prosecut ion of a defendant who is not c om pet ent t o st and t r ial. Medina

v. California , 5 0 5 U .S. 437 (1992). This bedrock principle is codified at Arkansas Code
Annot at ed sect ion 5-2-302(a) (Repl. 2006), which provides that a person lacking t he capacit y

t o underst and t he proceedings against him or t o assist effect i vely in his defense as a result of

m ent al disease or defect shall not proceed t o t rial so long as the incapac it y e ndures. A rk.
C o d e A n n
. § 5-2-302 (Repl. 2006). A c rim inal d efendant is presum e d t o be c om pet en t , 24Cit e as 2014 A rk . 7

however, and t he burden of proving incom pet ence is on t he accuse d

. H a y n es v. State , 346 Ark. 388, 58 S.W.3d 336 (2001). To be com pet e n t t o st and t rial, a defendant m ust have “t he capacit y t o underst and t he nat ure and object of t h e proceedings against him , t o consult wit h counsel, and to assist in preparing his defense.” Drope v. M i ssouri , 420 U .S. 162, 171 (1975). This court h as defined t he t est of com pet ency to st and t rial as “whet her a d efendant has

s u f f icient present abilit y to consult wit h his lawyer wit h a reasonable degree of rat i o n a l underst anding and whet her h e h as a rat io n a l , a s well as f act u al, underst anding of t he proceedings against him

. ” Th essing v. State , 365 Ark. at 390, 230 S

. W

. 3 d a t 5 32 (quot ing Haynes v. State , 346 Ark. 388, 392, 58 S .W.3d 336, 3 39 (2001)); Deason v. State , 263 Ark. 56,
562 S.W.2d 79 (1978) (cit ing Dusk y v. United Sta t es , 3 62 U .S. 402 (1960)). This i s,

essent ially, a t w o -part t est , wit h incom pet ency t o st and t rial being est ablished if eit her part is dem onst rat ed. United States v. Cunning h am , 556 F. Supp. 2d 968 (S.D. Iowa 2008).
Com pet ence t o st and trial i s rudim ent ary, for upon i t d epends t he m ain part of t hose right s deem ed essent ial t o a fair t r ial, including t he right t o e ffect ive assist ance of counsel, t he right s to sum m on, t o confront , a n d t o c ross-exam ine wit nesses, and t h e right to t est ify on one’s own behalf o r t o rem ain silent wit hout penalt y f or doing so. Cooper v. O k lah oma , 517
U .S. 348, 354 (1996). Nonet heless, com pet ence “has a m odest aim : I t seeks t o ensure that [t he d efendant ] h as t he capacit y t o u nderst and the proceedings and t o assist c ounsel.” Godinez

v. Moran , 509 U .S. 389, 402 (1993). It is recognized t hat n ot every m anifest at i on of m ent al illness dem onst rat es incom pet e nce t o st and t rial. United States v. Turne r , 6 4 4 F

. 3 d 713 (8t h
Cir. 2011) (cit ing Vog t v. United States , 88 F

. 3 d 5 87, 590 (8t h Cir. 1996)). Sim ilarly, neit h er

25Cit e as 2014 A rk . 7

low int elligence, m ent al deficiency, n o r b izarre, volat ile, and irrat ional behavior can be equat ed wit h m ent al incom pet ence t o st and t r ial. Lyons v. Luebbers , 403 F .3d 585 (8t h Cir. 2005).
In t he present m at t er, all t hree exp e r t s were confront e d wit h t he difficult t ask of conduct ing a ret rospect ive evaluat ion of Newm an’s com pet ency t o st and t rial in June 2002.
H owever, t heir effort s were necessary because of t he serious m i st akes m ade by Mallory when h e form e d his init ial o p inion t hat Newm an was f it t o st and t rial. Wit h t hat said, t he t hree expert s who t est ified at t he hearing agree t h at Newm an has significant cognit ive defect s and l im i t at ions. The expert s are in accord t h at Newm an’s IQ l ies wit hin t he range o f m e n t a l disabi l it y. They all agree wit h t he diagnoses of major d epression and PTSD and t he debilit at ing sym pt om s t hat t hese illnesses can p roduce. The expert s also agree t h at Newm an had a rudim ent ary underst anding of the proceedings against him

. T he o p i nions diverge prim arily w it h respect t o t he effect t hat Newm an’s deficit s and m ent al illnesses have on his capacit y t o consult w i t h his l awyer wit h a reasonable degree of rat ional underst anding. On

t his prong of t he com pet ency t est , Weinst e i n offered t he o pinion that Newm an’s effor t s t o engineer h is own convict ion and execut ion were n eit her rat ional n or volit ional. Inst ead, he believed t hat Newm an’s behavior was the result o f suicidalit y and his c ognit ive inabilit y to envision and plan a t olerable li f e fo r h i m s elf. S t ewart also opined t hat Newm an’s preoccupat ion wit h deat h and t he desire t o die im peded his abilit y t o m ake rat ional, selfprot ect ive decisions. B ot h Weinst ein and St ewart st at ed t he opinion that Newm an’s capacit y

t o effect ively assist counsel and t o m ake rat i onal choic e s w as o vercom e by a com pulsion to

26Cit e as 2014 A rk . 7

die as a c o m b i n e d r esult of his cognit ive deficit s and m ent al illnesses. On t he ot her hand, Gray’s o p inion was t h a t N ew man’s writ ings and especially his abilit y t o com plet e psychological test s, and t he effort Newm an put f ort h in taking the t est s, d e m o n st rat ed his abilit y t o effect i vely cooperat e wit h ot hers.
H ere, t he circuit court r elied on t he opinion offered by Gray t hat Newm an was

com p et ent t o st and t rial. T his c o u r t generally defers t o a circuit court ’s det erm i nat ion of credibilit y in post convict ion m at ters. See Lee v. State , 343 Ark. 7 02, 38 S.W.3d 334 (2001).
H owever, a circuit court ’ s accept ance of an expert ’ s t est im ony on t he issue of c om p et ency is

not beyond appellat e review. As explained by t he Eight h Circuit Court of Appeals in United
States v. Gh ane , 593 F.3d 775, 781 (8t h Cir. 2010):
It is cert ainly wit hin a dist r ict court ’s province t o c hoose one expert ’s opinion o v er a com p et ing qualified expert ’s opinion. See [ United States v. G h ane , 490 F.3d 1036, 1040 (8t h Cir. 2007)]. Nonet heless, in credit i ng an e xpert ’s opinion, it is not t h e opinion it self that is im port ant , b ut t he rat ionale u nderlying it

. See [ United States v. W

h itting ton , 586 F.3d 613, 618 (8t h Cir. 2009)] (“Even expert opinion on com pet ency r i s e s n o h igher t han t h e reasons on which it is based[.]”). When we closely exam ine t he rat ionale u nderlying Gr a y’s opinion that Newm an was

com p et ent , we are not convinced t hat h is opinion adequat ely addressed t h e abilit y-t o-assist
prong o f the t e s t f

o r c o mpet ency. Gray’s prim ary focus was on t he let t e rs Newm an had
writ ten. Gray also considered Newm an’s cooperat ion in com plet ing psychological t est ing as indicat ive of an abilit y t o assist c ounsel. While t he let t e r s perhaps give insight int o Newm an’s overall fact ual un d er s t anding of t he proceedings, which com prises only one prong of t he

com p et ency t est , t hey are n o t a fair gauge for assessing t h e capac i t y t o assist counsel wit h a

27Cit e as 2014 A rk . 7

rat ional degree of underst anding. Nor are we persu a d e d t hat t he abilit y t o undergo psychological t est ing c orrelat es wit h t he capacit y t o reasonably and r at ionally engage wit h an

at t o rney. It appears t o t h i s c o urt t hat , i f c om plet ing t he t est s necessary t o det erm ine

com p et ency is considered an i n d i c a t i on o f com pet e n cy, t hen only t hose who are incapable of com plet ing t he t e st s, while also not exhibit ing signs o f malingering, can be found
incom pet ent

. Clearly, t his cannot be t he t est o f com pet ency. I n addit ion, G ray’s opinion is

at odds wit h his own scoring of t h e MacArt hur t est , as the scores Gray gave revealed t he
presence of im pairm e nt in t wo c at e gories of t h e t est , including t he part t hat assesses t he capacit y t o assist counsel. Moreover, Gray r ecognized t h at Newm an’s suicidalit y could be a product o f his cognit ive deficit s and his m ent al i llnesses and t hat such a com pulsion would render him incom pet ent to st and t rial. Alt hough Gray offered an alt e r nat ive explanat ion that
N ewm an m ay h ave want ed just ice f or t he vict im and her fam ily, h e did not refut e t h e opinions of St ewart and W einst ein t hat Newm an w as driven by irrat i o nal suicidal im pulses.
In sum , we conclude t h at Gray’s opinion does not provide a basis u po n w h i c h t o find that
Newm an h ad t he capacit y t o assist counsel wit h a reasonable degree of r at ional underst anding. Aft er reviewing t h e ent ire record, we are left w it h a definit e and firm c onvict ion that

a m ist ake w as made. D rs. St ewart and Weinst ein t est ified t hat Newm an was n ot fit t o st and

t r ial because he w as unable t o engage in rat ional, self-prot ect ive behavior. G iven Newm an’s obvious bent on self-dest ruct ion, D rs. St ewart and Weinst ein believed t hat Newm an was not capable of cooperat i ng wit h his at torney in a m eaningful way. Their conclusions are fort ified by t he record, beginning w it h t he m anner in which Newm an conduct ed him self b efore t rial,

28Cit e as 2014 A rk . 7

at t r ial, and even dur ing t he coram nobis hearing. Marquet t e also adam ant ly t e st ified that
Newm an had shut d own t h e pursuit of any defense opt ions and st rat egies. A s shown by t he record of t r ial, no m i t igat ion evidence was even offered o n Newm an’s behalf. Taking everyt hing int o account , we are persuaded t hat t he record overwhelm ing l y i l l u s t rat es that
Newm an’s cognit ive deficit s and m ent al illnesses int erfered wit h his abilit y t o effect ively and

rat ionally assist c o unsel. Therefore, we hold that t he circuit c ourt ab u s ed i t s d i s c ret ion in denying Newm an’s pet it ion for w rit of er r o r c o r a m nobis, and we have no choice but to reverse and rem and for a new t r ial. Reversed and rem anded. Julie B rain , for appellant

. D u stin McDaniel , At t ’y Gen., by: Darnisa E vans Joh nson , Deput y At t ’y G e n
. , f o r appellee.

29