Turner v. State

Robert C. TURNER v. STATE of Arkansas

CR 96-327                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Motions -- denial of motion for continuance -- factors on
     review. -- A continuance is addressed to the sound discretion
     of the trial court, and a decision will not be reversed absent
     an abuse of discretion amounting to a denial of justice; an
     accused is presumed competent to stand trial, and the burden
     of proving incompetence is on the accused.  

2.   Motions -- motion for continuance -- factors considered by
     trial court in reaching decision. -- The following factors are
     considered by a trial court in deciding a continuance motion: 
     (1) the diligence of the movant; (2) the probable effect of
     the testimony at trial; (3) the likelihood of procuring the
     attendance of the witness in the event of a postponement; and
     (4) the filing of an affidavit, stating not only what facts
     the witness would prove, but also that the appellant believes
     them to be true.

3.   Motions -- appellant failed to act diligently in making
     continuance request -- trial court's denial of motion not an
     abuse of discretion. -- Where the trial court granted four
     continuances, and, in an attempt to confirm if appellant's
     case was ready for trial, it conferenced with the defense
     counsel and prosecutor four days prior to the trial date and
     concluded that it was, appellant appeared on the day of trial,
     both sides announced ready, and appellant did not make his
     continuance request until after the jury was selected, the
     record failed to reveal appellant acted diligently in making
     another continuance request on the day of trial, and the trial
     court was well within its discretion to deny it.

4.   Motions -- motion for continuance denied -- no prejudice
     shown. -- Appellant failed to show that he had been prejudiced
     by the trial court's denial of his continuance motion where he
     failed to show how the doctor's report would have altered the
     evidence presented at trial; appellant failed to show that 
     prejudice resulted from the trial court's denial of his
     continuance motion.


     Appeal from Hempstead Circuit Court; Jim Gunter, Judge;
affirmed.
     Jim Pedigo, P.A., by:  Jim Pedigo, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.


     Tom Glaze, Justice.
     Appellant Robert C. Turner files this appeal from his
convictions of burglary and attempted rape and respective
consecutive sentences of twenty-year terms.  His sole point for
reversal is that the trial court should have granted him a
continuance on the day of trial because a mental examination report
had not yet been filed with the court as required by Ark. Code Ann.
 5-2-305(f) (Supp. 1995).
     Briefly, we mention the facts leading to Turner's arrest.  On
the morning of November 19, 1994, Mary L. Byrd heard a window break
in her dining room, and upon investigation, she went downstairs and
found an adult male standing in the dining room.  Byrd screamed and
tried to escape out the back door, when the intruder struck her. 
After repeatedly beating Byrd, the intruder then demanded she "get
them (clothes) off, bitch."  Byrd was able to get up and ran
outside where the intruder caught her and tried to strangle her
with an extension cord.  By this time, one of Byrd's daughters
appeared, frightening the intruder away.  Byrd and her daughter
later identified Turner as the intruder from a photo lineup. 
Turner was subsequently charged and convicted of burglary and
attempted rape.
     On March 15, 1995, Turner requested a psychiatric examination,
asserting he previously had undergone brain surgery which he
alleged resulted in a mental defect.  The circuit court granted
Turner's motion, ordering Southwest Arkansas Counseling and Mental
Health, Inc. (Southwest Mental Health) to determine if Turner
suffered from a mental defect at the time of the alleged offenses
and whether he was competent to stand trial.
     Turner was granted three continuances in order to obtain a
report from Southwest Mental Health, and after the third, the trial
court set the trial for Wednesday, August 9, 1995.  By August 9, an
evaluation report still had not been filed.  Trial was again
postponed, but on Friday, August 11, 1995, defense counsel and the
prosecutor conferenced with the trial court and determined they
could try the case on Tuesday, August 15, 1995.  While no
evaluation had been filed, counsel had been in phone conferences
with Dr. Michael McAllister, a clinical psychologist with Southwest
Mental Health, and on August 11 the doctor sent defense counsel the
following facsimile:
          Talked with Dr. Seidel -- we agree Mr. Turner is
     competent at this time and is able to form intent even
     though A-E functions below average.
     At the August 15 trial, counsel for both sides announced ready
for trial, and they proceeded to select a jury.  After jury
selection, defense counsel orally asked for a continuance because
an evaluation report had still not been filed with the court.  He
relied on  5-2-305(f) and argued that, under this provision, it
was mandatory for the person designated to perform the evaluation
to file the report of the examination with the clerk of the court. 
Turner concluded that he should not be forced to trial until such
report was filed.  
     The trial court pointed out that  5-2-305 does not provide
when examination reports must be filed, and it stated that it had
been lenient in granting prior continuances.  The trial court
further noted that he had been in close contact with the defense
and prosecution for several days to make sure the case was ready
for trial; it also had been made aware of Dr. McAllister's
facsimile reflecting Turner's competency to stand trial.  The trial
court concluded that it believed Turner had been given enough time
in continuances, but it allowed both counsel to have a preliminary
trial hearing to ask Dr. McAllister questions.  During that
questioning, Dr. McAllister stated that he had what information
that he needed to know, and opined that while Turner did have some
mental retardation, he could conform his conduct to the law at the
time of the crimes with which Turner was charged, and he was able
to assist counsel in preparation for trial.  
     After hearing counsels' arguments and Dr. McAllister's
pretrial testimony, the trial court ruled that it was Turner's
burden to prepare his defense, and having failed to obtain an
evaluation report, it would grant Turner no further continuance for
that purpose.  In addition, the trial court found Dr. McAllister's
testimony and his earlier facsimile given to Turner four days
before trial complied with the court's prior order directing
Turner's mental examination and report.  After the trial court's
rulings, the case was tried to a jury which found Turner guilty.
     Turner's point on appeal asserts the trial court erred in
denying a continuance, but his argument focuses mostly on his
construction of Ark. Code Ann.  5-2-305 (Supp. 1995), and claim
that, if an evaluation report was not filed in strict compliance
with that statute, he could not be tried.  In particular, Turner
cites Ark. Code Ann.  5-2-305(d) (Supp. 1995), which provides as
follows:
          (d)  The report of the examination shall include the
     following:
          (1)  A description of the nature of the examination;
          (2)  A diagnosis of the mental condition of the
     defendant;
          (3)  An opinion as to his capacity to understand the
     proceedings against him and to assist effectively in his
     own defense;
          (4)  An opinion as to the extent, if any, to which
     the capacity of the defendant to appreciate the
     criminality of his conduct or to conform his conduct to
     the requirements of law was impaired at the time of the
     conduct alleged; and
          (5)  When directed by the court, an opinion as to
     the capacity of the defendant to have the culpable mental
     state that is required to establish an element of the
     offense charged.
     Turner's argument is that the facsimile submitted to defense
counsel by Dr. McAllister did not strictly or substantially comply
with  5-2-305(d), nor did the doctor's facsimile and his pretrial
testimony substantially comply with  5-2-305(f), which provides
that the person designated to perform the evaluation shall file the
report of the examination with the clerk of the court.  In sum,
Turner claims that had the examination been filed in accordance
with these provisions, as their plain terms provide, he would not
have been placed in the position of deciding, on the day of trial,
the extent to which he would make use of the fact that Turner had
undergone brain surgery.
     We first discuss the relevant principles in addressing the
trial court's decision to deny Turner's continuance motion.  We
have repeatedly held that a continuance is addressed to the sound
discretion of the trial court, and a decision will not be reversed
absent an abuse of discretion amounting to a denial of justice. 
Carter v. State, ____ Ark. ____, ____ S.W.2d ____ (September 16,
1996).  We would also point out, as did the trial court below, that
an accused is presumed competent to stand trial, and the burden of
proving incompetence is on the accused.  Id,; Bowen v. State, 322
Ark. 483, 911 S.W.2d 555 (1995).  
     Continuance motions are in part governed by Arkansas Rule of
Criminal Procedure 27.3, which provides as follows:
          The court shall grant a continuance only upon a
     showing of good cause and only for so long as is
     necessary, taking into account not only the request or
     consent of the prosecuting attorney or defense counsel,
     but also the public interest in prompt disposition of the
     case.  
This court has also denoted the following several factors to be
considered by a trial court in deciding a continuance motion:  (1)
the diligence of the movant; (2) the probable effect of the
testimony at trial; (3) the likelihood of procuring the attendance
of the witness in the event of a postponement, and (4) the filing
of an affidavit, stating not only what facts the witness would
prove, but also that the appellant believes them to be true. 
Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995); see also Ark.
Code Ann.  16-63-402(a) (1987).
     Here, the trial court granted four continuances, and in an
attempt to confirm if Turner's case was ready for trial, it
conferenced with the defense counsel and prosecutor four days prior
to the trial date and concluded it was.  In fact, Turner appeared
on the day of trial, both sides announced ready, and Turner did not
make his continuance request until after the jury was selected.
     At least four days before trial time, Turner knew Dr.
McAllister had determined Turner to be competent and would testify
accordingly.  He also knew the State and the trial court were
prepared to try his case on August 15, but filed no motion or
affidavit stating reasons why another continuance should be
granted.  At the conclusion of the preliminary hearing, Turner,
besides arguing  5-20-305 was not complied with, stated his
medical problem of brain surgery was a factor in the case and the
psychologist's report would specify the problems.  As the
prosecutor pointed out, Turner could have best obtained that
information by interviewing the doctor who performed the surgery,
but he failed to do so.  In sum, the record simply fails to reveal
Turner acted diligently in making another continuance request on
the day of trial, and the trial court was well within its
discretion to deny it.
     Finally, we would also mention that Turner failed to show that
he had been prejudiced by the trial court's denial of his
continuance motion.  Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994).  While we could well agree that Dr. McAllister's report
failed to comply with the provisions contained in  5-2-305, Turner
never argued that his defense would ultimately depend upon
incompetency or insanity.  Turner offered no indication that he
would request evaluation by another psychologist in an attempt to
contest Dr. McAllister's findings of competency.  Rather, Turner
testified, asserting the alibi defense, that he was at his sister's
house when the crimes were committed.  Because Turner failed to
show how Dr. McAllister's report would have altered the evidence
presented at trial, he has shown no prejudice resulted from the
trial court's denial of his continuance motion.
     For the above reasons, we affirm.
     BROWN, J., dissents.
         ROBERT L. BROWN, Associate Justice, dissenting
     On March 15, 1995, appellant Robert C. Turner notified the
State of his insanity defense and moved the court for a psychiatric
examination and for all records, reports, evaluations, and
examinations relating to it.  That same date, the trial court
ordered the evaluation and also ordered the examining agency to
"make available to counsel the records of said examination,
including all existing medical and pertinent records, including
`raw data.'"  The court further ordered the agency to transmit "a
report of the findings of the staff" concerning Turner's mental
competency.  None of this was done.  Rather, the examining
psychologist, Dr. Michael McAllister, was examined after the jury
was sworn about his work to date.  Dr. McAllister admitted on the
stand that his report was not yet complete.  Understandably,
Turner's counsel argues in his brief on appeal:
     As a result, Appellant's counsel was thus faced, on the
     very day of trial, with making a lightning-quick decision
     as to a matter of strategy, namely, the extent to which
     he would make use of the fact of the partial removal of
     Appellant's brain in Appellant's defense.
As a practical matter, defense counsel was forced to abandon the
insanity defense.
     This court has dealt with analogous situations on two prior
occasions.  See Hayes v. State, 274 Ark. 440, 625 S.W.2d 498
(1981); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). 
In Hayes, the defendant had sought staff reports in conjunction
with the court-ordered psychiatric examination.  The mental health
agency's report addressed the defendant's borderline retardation
and diagnosed him as being without psychosis, although suffering
from alcohol addiction and a severe antisocial personality.  The
report stated that it was based on historical data and physical and
neurological examinations.  The defendant did not receive copies of
the underlying psychiatric data.  We concluded, in reversing the
conviction:
          Here, it could be that an inspection and copying of
     these records and reports would have better enabled the
     appellant to prepare his defense, or interpose the
     defense of insanity, or present at trial crucial evidence
     bearing on mitigation, such as possible mental
     retardation, during the sentencing phase of the trial. 
     We hold it was prejudicial error to deny him access to
     these agencies' reports.
Hayes, 274 Ark. at 444, 625 S.W.2d  at 500.
     Similarly, in Westbrook v. State, supra, the defendant's basic
defense was insanity at the time the offense was committed.  We
noted that the burden of proof on the defendant was preponderance
of the evidence, and that the defendant had moved for the full
State Hospital records relating to his two commitments.  The trial
court granted the motion but the data was never furnished to him. 
This court stated: "Due to the nature of the defense we feel it was
necessary that appellant have these records, if they exist, in
order to fully prepare his defense."  Westbrook, 265 Ark. at 745,
580 S.W.2d  at 707.  We concluded that "the materiality of the
records has clearly been shown and the need for them was apparent." 
Westbrook, 265 Ark. at 746, 580 S.W.2d  at 707.  In Westbrook, we
granted a new trial for this and other reasons.
     The trial court, with justification, was frustrated by the
fact that the trial had been continued four times to allow the
agency's report to be filed.  On the day of the trial, defense
counsel advised the court that he had subpoenaed Dr. McAllister for
trial and raised the question of what else he could have done to
precipitate a report.  The same question comes to my mind: What can
defense counsel do when an examining psychiatrist or psychologist
is recalcitrant or too busy and fails to file the required report? 
Here, the examining psychologist clearly knew about the trial date
and the fact that the trial court had ordered that the report and
backup data be filed.  He simply had been unable to complete the
report.  Defense counsel, as a result, was hamstrung in mounting
his defense and was forced, in effect, to go to trial without the
benefit of the psychologist's report, much less the underlying data
which were at issue in the Hayes and Westbrook cases.
     I further conclude that the report and data must be
transmitted and filed before trial.  Otherwise, it would be useless
to both the prosecution and the defense in waging battle over the
defendant's fitness to proceed at trial and competency at time of
the offense.
     Here, Dr. McAllister candidly admitted that he was too busy to
complete the report, that there was underlying data on which the
report would be based, that one piece of outstanding information
still remained to be garnered, and that he would probably have the
report filed in two to three weeks.  A one-sentence hand-written
note from Dr. McAllister four days before trial setting forth his
conclusion of competency followed by his testimony on the day of
trial do not cure the obvious defect in procedure.  They certainly
do not rise to the stature of the report required by Ark. Code Ann.
 5-2-305 (Supp. 1995).  The defense was caught up short by the
failure of the examining agency to comply with the court order and
state law.
     One final point.  I cannot say that defense counsel was
dilatory in obtaining the report.  In these instances, the
examining psychiatrist or psychologist holds the cards.  Counsel
asked for continuances to buy time, including a request on the day
of the trial after the jury was seated, to give him time to review
the report.  That was denied him.  I would remand for a new trial.