Dansby v. Norris
ORDER granting in part and denying in part 203 Motion in Limine, as set forth. Signed by Honorable Susan O. Hickey on September 19, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOE LOUIS DANSBY
CIVIL NO. 4:02-cv-04141
RAY HOBBS, Director
Arkansas Department of Corrections
Currently before the Court is Petitioner’s Motion in Limine to preclude Respondent from
calling Andrew Engram and Petitioner Joe Louis Dansby as witnesses at the upcoming competency
hearing. (ECF No. 203). Respondent filed a Response to Petitioner’s Motion. (ECF No. 210).
Petitioner replied. (ECF No. 213). This matter is ripe for consideration.
On November 18, 2008, Petitioner filed a Motion to Hold Proceedings in Abeyance until
Petitioner is Determined Competent to Assist Counsel and for Order Permitting Cell Side Visit by
Mental Health Professional. (ECF No. 85). The Court denied Petitioners Motion to Hold in
Abeyance but ordered a cell-side mental evaluation to evaluate Petitioner’s competency (ECF No.
94), and later conducted an informational hearing at the Arkansas Department of CorrectionsVarner Unit to determine if Petitioner wanted to continue with his Atkins claim1 (ECF No. 121).
Subsequently, on April 6, 2010, the Court found the issue of Petitioner’s competency was
sufficiently raised and ordered Petitioner transferred to a federal medical facility for evaluation.
(ECF No. 124). The Court ordered a psychiatric or psychological examination to determine:
According to the Supreme Court, execution of mentally retarded individuals is “cruel
and unusual punishment” prohibited by the Eighth Amendment. Atkins v. Virgina, 536 U.S. 304
(A) whether Petitioner Dansby is suffering from a mental disease or defect, and if so,
whether such mental disease or defect render him incapable of
communicating with and assisting his counsel or testifying in the
whether such mental disease, disorder, or defect renders Petitioner Dansby
incapable of a rational understanding of these habeas proceedings, and
(iii) whether such mental disease, disorder, or defect may substantially affect
Petitioner Dansby's ability to make rational decisions with respect to habeas
proceedings, in particular with respect to pursuing or abandoning a claim
that he is mentally retarded and ineligible for execution;
(B) whether Mr. Dansby understands he is to be executed and understands the reason for
the execution is that he is convicted of the murders of Malissa Clark and Jeffery Lewis; and
(C) Petitioner Dansby's intelligence quotient is and an opinion as to whether Petitioner
Dansby is mentally retarded as defined under Ark. Code Ann. § 5-4-618.
(ECF No. 124).
Petitioner was sent to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri
(“Springfield Facility”). Dr. DeMier, from the Springfield Facility, submitted to the Court a
Forensic Psychological Report detailing his attempted evaluation of Petitioner. (ECF No. 139).
After receiving and reviewing Dr. DeMier's report, the Court ordered the upcoming evidentiary
hearing to determine Petitioner's competency. (ECF No. 140).
Petitioner first moves to preclude the testimony of Andrew Engram in the upcoming
evidentiary hearing. Mr. Engram is a death row inmate and is represented by Public Defender Scott
Braden, counsel for Petitioner. In support of his Motion, Petitioner asserts Mr. Engram should be
precluded from testifying for the same reasons the Court denied Respondent leave to depose Mr.
Engram. Additionally, Petitioner argues that Mr. Engram’s testimony cannot be any more detailed
or illuminating than the notes which Mr. Engram and Petitioner exchanged and Respondent’s are
“free to introduce those notes as evidence at the hearing.” (ECF No. 203, p. 4). Finally,
Petitioner’s counsel represents that, pursuant to Arkansas Rule of Professional Conduct 1.7, he will
be forced to withdraw as both Petitioner and Mr. Engram’s counsel if Mr. Engram is allowed to
testify at the upcoming hearing.
Respondent argues that the notes removed from Petitioner’s cell indicate that he
corresponded with Mr. Engram as late as August 22, 2010 regarding his legal situation. Because
Petitioner has not discussed his legal situation with others, Respondent contends that Mr. Engram’s
testimony is critical to the issue of Petitioner’s competency. Respondent further argues that
Petitioner’s counsel should not be allowed to use the Arkansas Rules of Professional Conduct as
a sword to prohibit presentation of evidence that is unquestionably relevant and critical to
Respondent’s defense. Respondent contends that there is ample time before the upcoming hearing
for a substitute public defender to learn Petitioner’s case, and that Mr. Engram will not be
prejudiced because his case is currently stayed in the Eastern District of Arkansas awaiting action
in the Arkansas State Courts.
Petitioner replied that Respondent has no basis for his representation that Mr. Engram
possesses critical information relevant to Petitioner’s competency. Further, Petitioner asserts that
any replacement counsel for Petitioner would need to review and digest thousands of pages of
documents and records, as well as, interview mental health and social history witnesses relevant
to the competency issue alone. Additionally, Petitioner reiterates his argument that the Court
should adopt its previous ruling and preclude Mr. Engram’s testimony.
As it held on September 20, 2011, the Court will defer to the judgment of counsel regarding
the existence of a disabling conflict, and will trust that counsel’s representation of the same is
“virtually made under oath.” (ECF No. 194) (quoting Holloway v. Arkansas, 435 U.S. 475, 485-6
(1978)). Petitioner’s counsel has represented (1) that he will be forced to withdraw as counsel for
both Petitioner and Mr. Engram if Mr. Engram testifies; and (2) that it will be a hardship for any
substitute attorney to assimilate the complex issues and voluminous records in Petitioner’s habeas
proceeding before the upcoming hearing. Additionally, Petitioner suggests that Respondent may
introduce the notes exchanged between Mr. Engram and Petitioner that are the subject of Mr.
Engram’s proposed testimony. Therefore, the Court finds the conflict impact on Petitioner
outweighs any prejudice suffered by Respondent by foregoing the testimony of Mr. Engram.
Joe Louis Dansby
Second, Petitioner moves to preclude his own testimony. Petitioner argues he has a Fifth
Amendment right against self-incrimination, is not competent to waive this right, is not competent
to testify, any testimony by Petitioner would be without the advice of counsel, and Petitioner is
incompetent to waive his right to counsel.
Respondent argues that any Fifth Amendment privilege Petitioner maintains in this habeas
proceeding may be invoked as necessary during his testimony and addressed by the Court at that
time. The complete preclusion of testimony is unnecessary.
In his Reply, Petitioner reiterates his arguments why Petitioner should be precluded from
The Respondent proposes that instead of wholly precluding Petitioner’s testimony, the Court
allow Petitioner to testify and entertain Petitioner’s assertions of his Fifth Amendment privilege
at the hearing as necessary. See Bean v. Calderon, 166 F.R.D. 452, 453 (E.D. Cal. 1996) (holding
that the respondent may depose the petitioner and the petitioner may invoke his Fifth Amendment
privileges during the deposition, however, “the court may draw an adverse inference from its
invocation if the questions to which the privilege is asserted directly relate to an allegation made
by petitioner in his verified petition, and the questions are otherwise not objectionable.”).
The Fifth Amendment protects individuals from being compelled “in any criminal case to
be a witness against himself.” U.S. Const. amend. V. It is well settled that habeas proceedings
are civil proceedings. Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). Additionally, it is
Petitioner who brought this habeas proceeding, and Petitioner who bears the burden of proof in
establishing his conviction is faulty. See Wessling v. Bennett, 410 F.2d 205, 209 (8th Cir. 1969).
As such, the Court held in its March 15, 2010 Order, Petitioner cannot present claims in this capital
habeas proceeding, and then claim a Fifth Amendment right to remain silent concerning those
claims. (ECF No. 117).
In the present Motion, Petitioner did offer case law in support of his contention, however,
Petitioner did not provide any precedence recognizing a petitioner’s right to assert the Fifth
Amendment privilege in a habeas proceeding.2 Thus, the Court will not diverge from its previous
ruling. The Court will, however, adopt Respondent’s proposition of allowing Petitioner to testify
and entertaining any Fifth Amendment privilege assertions as necessary at the hearing. See e.g.,
Bean v. Calderon, 166 F.R.D. 452 (E.D. Cal. 1996).
Therefore, the Court will not preclude Petitioner’s testimony. The Petitioner, or his counsel,
are free to assert Petitioner’s Fifth Amendment privilege in response to specific questions at the
hearing. The Court will address any such assertions at that time.
The Court notes that Petitioner cites “Nooner v. Norris, No. 08-cv-3 (E.D. Ark.) (Order,
Sept. 17, 2009) in support of his contention that the Fifth Amendment has been held to apply in
habeas proceedings in certain situations. The Court was unable to locate the Order cited and
therefore, could not rely upon it.
Preclusion of Petitioner’s testimony based on his arguments that he is incompetent to testify
and incompetent to waive right to counsel at the upcoming hearing is premature. The purpose of
the upcoming hearing is to determine Petitioner’s competency. The Court cannot, at this stage,
wholly preclude Petitioner from testifying based on the assertion he is incompetent when the issue
of Petitioner’s competency is yet to be determined.
Right to counsel
Finally, the Court also cannot preclude Petitioner’s testimony based on the fact that it will
be “uncounseled testimony.” Petitioner will be given the opportunity to consult with his counsel
prior to the hearing. While the Court recognizes Petitioner’s past refusals to cooperate with his
counsel, it is not certain that he will refuse to speak with his counsel prior to the upcoming
hearing. Additionally, Petitioner’s counsel will be present during any testimony given by Petitioner
and available to make objections and arguments if necessary. Therefore, even if Petitioner refuses
to speak with his counsel prior to the hearing, he will nevertheless be afforded the benefit of
representation at the hearing.
Accordingly, Petitioner’s Motion in Limine is GRANTED in part and DENIED in part.
Specifically, (1) Respondent is precluded from calling Andrew Engram to testify at the upcoming
competency hearing, however, (2) Respondent may solicit testimony, relevant to his competency,
IT IS THEREFORE ORDERED this 19th day of September 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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