DATE OF JUDGMENT: 06/29/91 TRIAL JUDGE: HON. ELZY J. SMITH, JR. COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
The opinion of the court was delivered by: Smith, Justice
NATURE OF THE CASE: CIVIL - DEATH PENALTY (POST CONVICTION RELIEF)
DISPOSITION MOTION TO DISMISS POST-CONVICTION RELIEF REMANDED TO LOWER COURT - 3/12/98
MOTION FOR REHEARING FILED:
¶1. This matter comes before the Court, En Banc, on the motion of Jimmie Mack to withdraw his motion for post-conviction collateral relief. Mack was convicted in the Circuit Court of Bolivar County of murder and sentenced to death by lethal injection. His conviction and sentence were affirmed by this Court in Mack v. State, 650 So. 2d 1289 (Miss. 1994). Mack asserts that he no longer wishes to pursue any avenue of state or federal collateral review.
¶2. Although Mack's mental competence was not an issue at trial or on direct appeal, the attorney appointed by the federal district court to represent Mack has informed this Court in writing that he questions Mack's "mental and emotional ability to arrive at such a decision." *fn1 Mack was examined by a defense psychologist before trial, but the psychologist was not called as a witness and the report was not introduced into evidence or made a part of the appellate record. In fact, the trial court sealed the report at the request of defense counsel. Medical records of the state penitentiary show that Mack was treated for depression in 1990 and 1991, but has not received treatment since that time.
¶3. The State has filed a response in which it argues that there is no credible evidence on record that Mack is mentally incompetent to withdraw his motion for post-conviction relief and that this Court should allow the execution to proceed. The State attached exhibits from two laymen who state that Mack is mentally competent and argues that the sealed trial court exhibit coupled with the exhibits is sufficient for this Court to now determine this issue. Alternatively, the State suggests that this Court remand the matter to the circuit court to have Mack's competency evaluated by a psychiatrist and forensic psychologist and that the trial court enter written findings of fact and conclusions of law after an evidentiary hearing has been held.
¶4. Our examination of this record, including the sealed trial court exhibit, reveals that Mack's mental condition has not been evaluated by a psychologist or psychiatrist since 1990. Although the issue of an inmate's request of this Court to be allowed to dismiss his post-conviction relief motion with his competency being placed into question is first impression for this Court, other courts have so addressed. However, this Court has previously recognized that a trial court commits no error in relying on recent psychiatric evaluations (eight months) when declining to order further mental testing of an inmate convicted of capital murder and sentenced to death. Billiot v. State, 655 So. 2d 1 (Miss. 1995).
¶5. One of Mack's court appointed federal counsel advises this Court that Mack is now incompetent and unable to make this important decision. Yet another attorney for Mack in a separate federal action claims that Mack no longer desires to dismiss his PCR. Contrary to the Dissent, this critical issue has nothing whatsoever to do with being "tough on crime." It has everything to do with this Court being certain of the factual allegations of Mack's competency, prior to allowing his execution to proceed. This Court is not the fact finder, but rather, the same trial court should make such determination prior to a decision being rendered by this Court. A mere two month delay is of little consequence in deciding this important issue. If this is but a ruse, it will be revealed. If it is genuine, that too will be determined. Regardless, an inmate must be competent prior to a death sentence being actually implemented, a factor which is not only required by a judicial determination, but also is grounded in legislative intent. *fn2 However, in the case at bar, this Court does not have the benefit of a recent psychiatric evaluation of Mack's mental competence, as existed in Billiot. If a more recent evaluation of Mack's competency existed within this record, this Court could now determine this issue. However, a 1990 psychological evaluation is too remote. It certainly is not within a recent or reasonable time frame sufficient to allow this Court to determine Mack's competency at this time. We therefore decline to decide the motion based on the inadequate and limited record as well as the unreasonable time frame established by this record concerning Mack's competency now before us. Instead, we adopt in part the State's alternative suggestion that Mack be examined by a court appointed psychiatrist and a competency hearing be conducted for Mack by the circuit court, with that court preparing written findings of fact and conclusions of law certified to this Court prior to our decision on Mack's motion to dismiss his PCR. Mack has already had his direct appeal considered and decided by this Court and seeks to withdraw his motion for collateral relief. While this Court has not previously addressed such a motion, others have. The Arkansas Supreme Court, in O'Rourke v. State, 300 Ark. 323, 778 S.W.2d 938 (1989) held:
A condemned person may waive collateral challenges to his conviction and sentence provided he is mentally competent to do so. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966); Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); see Rumbaugh v. Procunier, 753 F.2d 395 (1985); Streetman v. Lynaugh, 674 F.Supp. 229 (E.D.Tex.1987); see also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d. 632 (1976). In Rees the United States Supreme court set out the standard to be used in deciding whether a person under sentence of death is mentally competent to choose to forgo further appeals and collateral attacks on his conviction and sentence. The test is
Whether he has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.
As the petitioner has alleged that he is competent and there can be no doubt that a competent person may avail himself of the right to abandon collateral remedies, we remand the case to the trial court for an evidentiary hearing on whether petitioner is competent under the standard ...