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                  SUPREME COURT OF ARKANSAS
                                Nos.   CR-92-1385 & CR-00-528

                                                    Opinion Delivered: April   17, 2017

DON WILLIAM DAVIS
                                  APPELLANT MOTION TO RECALL THE
                                            MANDATE AND FOR STAY OF
V.                                          EXECUTION [BENTON COUNTY
                                            CIRCUIT COURT NO. CR-91-80-1]
STATE OF ARKANSAS
                                       APPELLEE


                                                    DISSENTING OPINION.


                            SHAWN A. WOMACK, Associate Justice


        Don William Davis and Bruce Earl Ward ask us to recall the mandates in their capital

 murder cases and stay their executions.1 Davis comes to us on what appears to be at least the

 29th appellate review of his case (either individually or collectively with other litigants) since

 the murder of 62-year-old Jane T. Daniel on October 12, 1990. Similarly, Ward appears

 before this court after an exhaustive list of appeals and after being sentenced to death by

 three separate juries for the August 11, 1989, murder of 18-year-old Rebecca Lynn Doss.

 Their argument can be stated concisely: The state and federal courts involved in their cases

 have grievously misinterpreted the United States Supreme Court’s holding in Ake v.

 Oklahoma, 470 U.S. 68 (1985). I would deny these motions for three independently




        1
          Davis and Ward filed their motions jointly due to the identical legal arguments
 presented, but this court has chosen to dispose of them separately. As such, I address the
 history and claims of both movants together.
                                     Cite as 2017 Ark. 134

sufficient reasons. First, our precedent firmly establishes that we have ruled on this precise

issue and held their view of Ake is wrong. Second, it has not been the practice of this court

to grant the extraordinary relief they request in similar circumstances. Third, even if the

Supreme Court decides McWilliams in precisely the way that the petitioners predict, it is not

clear that Davis or Ward will have any avenues for relief.

       First, Ake held that criminal defendants are constitutionally entitled to “access to a

competent psychiatrist who will conduct an appropriate examination and assist in evaluation,

preparation, and presentation of the defense.” Id. at 83. Petitioners argue that this language

requires that the state pay for a psychiatrist assigned exclusively to assist the defense rather

than a neutral evaluator. Davis previously argued this same point before the trial court, this

court on direct appeal,2 this court in his petition for postconviction relief,3 the federal district

court, and the United States Court of Appeals for the Eighth Circuit.4 Ward also made the

argument before the trial court, this court during the course of his multiple direct appeals,5

postconviction petition,6 and federal habeas action.7 Notably, we addressed this exact

argument in Ward’s prior attempts to have us recall his mandate, which became the law of

the case.8 Davis and Ward both assert that their psychiatric evaluations in the state hospital

do not meet the Ake requirement. This court has consistently held that the state’s protocol


       2Davis v. State, 314 Ark. 257, 265, 863 S.W.2d 259, 269 (1993).
       3Davis v. State, 345 Ark. 161, 170, 44 S.W.3d 726, 731 (2001).
      4 Davis v. Norris, 423 F.3d 868, 875 (8th Cir. 2005).
      5
        Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Ward v. State, 321 Ark. 659,
906 S.W.2d 685 (1995); Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999).
      6
        Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002).
      7
        Ward v. Norris, 577 F.3d 925 (8th Cir. 2009).
      8
        Ward v. State, 2015 Ark. 60, 455 S.W.3d 303; Ward v. State, 2015 Ark. 61, 455
S.W.3d 818.

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satisfies the requirements of Ake. See, e.g., Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426

(1989). As Davis demonstrates in his petition, we are in a minority on this issue but by no

means alone. See Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009); McWilliams v. Comm’r

Ala. Dep’t of Corr., 634 F. App’x 698 (11th Cir. 2015); Woodward v. State, 726 So. 2d 524

(Miss. 1997).

         Second, even the movants recognize that neither a motion to recall the mandate nor

to stay an execution is the appropriate forum to reargue a point of constitutional

interpretation that this court has already addressed to exhaustion. The overriding interest in

the finality of judgments limits these remedies to exceedingly narrow circumstances. We

have looked at requests to recall mandates with such skepticism that we have described some

of the rare instances in which we grant the relief as “one of a kind, not to be repeated.”

Robbins v. State, 353 Ark. 556, 564, 114 S.W.3d 217, 223 (2003). Instead of bare restatement

of their underlying interpretive claims, then, they argue that the United States Supreme

Court’s decision to grant certiorari in McWilliams v. Dunn, 634 F. App’x 698 (11th Cir.

2015), cert. granted, __ U.S. __, 137 S. Ct. 808 (2017), overleaps our high bar and requires

us to grant their motions, at least until that case has been argued and decided by Supreme

Court.

         Movants cannot point to a controlling statement that this court recalls mandates or

stays executions due to the speculative outcome of a pending argument before the United

States Supreme Court. This is because such precedent does not exist. In Pickens v. Tucker,

316 Ark. 811, 875 S.W.2d 835 (1994), this court denied a stay of execution through a per

curiam opinion. As the concurrence makes clear, we denied the stay even though an active


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petition for certiorari in Otey v. Hopkins, 5 F.3d 1125 (8th Cir. 1993), was before the

Supreme Court and the case involved legal issues similar to the ones in Pickens. Id. (Brown,

J., concurring). In State v. Earl, 336 Ark. 271, 984 S.W.2d 442 (1999), we even declined to

recall a mandate when the Supreme Court had already ruled on the arguably related case,

which held that a traffic stop similar to the one in Earl’s case violated the Fourth

Amendment. Id. The majority declined to recall the mandate due to Earl’s failure to

challenge the disputed rule in the original proceeding, while the dissenting justices argued

for recall of the mandate in light of Earl’s brisk action following the new Supreme Court

precedent. Id. Given our reluctance to recall the mandate when we had the conflicting

Supreme Court opinion squarely in front of us, I would decline to do so here based solely

on reading the tea leaves about how the Court might act in McWilliams.

       Third, I am convinced that the majority’s decision to grant the petition is based on

the mistaken assumption that movants’ boldly predicted outcome in McWilliams will have

any impact on their available remedies. It is the rule both generally and in the habeas context

that new rules of law announced by the Supreme Court apply to cases still on direct review,

but only retroactively in a narrow set of circumstances. See, e.g., Harper v. Virginia Dep’t of

Taxation, 509 U.S. 86, 97 (1993). Movants can muster only that the question of retroactivity

under Arkansas law is “unresolved” and that “[t]his case presents an opportunity for the

Court to determine that question.” They argue that a favorable outcome in McWilliams

would not be a new rule, but instead a simple clarification that this state and other

jurisdictions adopting a similar view of Ake have been in clear violation of the plain language

of that opinion. I disagree. If the Supreme Court determines that over 30 years of practice


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by this and other states in applying Ake’s commands about psychiatric evaluations has been

constitutionally inadequate, that is a new rule of constitutional law of the sort not typically

applied retroactively.

       On a final note, and of no less importance, the majority, in a 4-3 decision, is granting

relief to the two individuals who were convicted of murdering Rebecca Lynn Doss and

Jane T. Daniel. The petitioners had their day in court, the jury spoke, and decades of appeals

have occurred. The families are entitled to closure and finality of the law. It is inconceivable

that this court, with the facts and the law well established, stays these executions over

speculation that the Supreme Court might change the law. This court has a duty to apply

the laws of Arkansas as they exist today. While the Supreme Court could certainly change

the law on any given day, that does not mean we can ignore our responsibility and refuse

to perform our duty. Today, justice has been denied by the majority.

       I dissent.

       WOOD, J., joins in this dissent.




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