Carter v. State

Walter Glenn CARTER v. STATE of Arkansas

CR 95-933                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 16, 1996


1.   Motions -- review of denial of motion for continuance --
     denial of last of series of motions for continuance not an
     abuse of discretion. -- 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; where the trial court gave appellant numerous
     continuances, months, and opportunities to obtain proof
     bearing on his competency to stand trial, it clearly gave
     appellant every opportunity to prepare his defense for trial
     and did not abuse its discretion in denying the last of his
     many continuance motions. 

2.   Mistrial -- when granted. -- A mistrial is an extreme remedy
     that should only be granted when justice cannot be served by
     continuing the trial; further, a defendant cannot be allowed
     to abort a trial and frustrate the process of justice by his
     own acts.  

3.   Mistrial -- denial of motion based on several factors -- no
     error found. -- Where the trial court based its denial of
     appellant's mistrial motion both on expert testimony, its own
     observations of appellant during trial, and appellant's
     interaction with his attorneys; where the record showed that
     appellant made appropriate responses to questions posed by his
     attorney; where the trial court had previously determined
     appellant's competency prior to trial and was able to observe
     his ability to consult with counsel both before and after his
     attempted suicide; where appellant had been evaluated on
     several occasions and found competent; where he was found to
     be a malingerer; and where appellant had been afforded
     adequate time to obtain further evidence bearing on his
     competency in advance of trial, he failed to do so, the trial
     court had ample evidence and reasons to deny appellant's
     motion for mistrial.  

4.   Appeal & error -- motion for directed verdict not renewed at
     close of case -- denial of motion not considered on appeal. --
     Appellant's argument that the trial court should have granted
     his motion for directed verdict with respect to burglary, and
     premeditation and deliberation for capital murder was not
     reached because appellant was procedurally barred because he
     failed to renew his motion at the close of the case.


     Appeal from Crittenden Circuit Court; David Burnett, Judge;
affirmed.
     Wayne Emmons and Chandler Law Firm, by:  Edward Witt Chandler,
for appellant. 
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     Appellant Walter Carter was charged with the capital murder of
Charles Mettler, the burglary of Mettler's residence, and the
battery of Carter's wife, Denise, who was present at Mettler's
house at the time of the killing.  Carter raised the insanity
defense, but the jury convicted him of the capital murder and
burglary charges, and Carter was sentenced respectively to life
imprisonment without parole and twenty years.
     In this appeal, Carter first claims the trial court erred in
denying his motion for continuance on the date of trial.  In his
motion, Carter requested more time to obtain a mental evaluation to
show he was incompetent to stand trial.  To understand Carter's
argument and the trial court's ruling, we review the pretrial
events that took place from the time Carter first requested a
mental evaluation.  That request was granted by the trial court on
April 18, 1994, and an evaluation was conducted.  Upon Carter's
request, a second evaluation was ordered on May 3, 1994.  On June
8, 1994, the State Hospital submitted its report, stating that
Carter was not mentally ill at the time of the crime, and that he
was competent to stand trial.  Nevertheless, Carter requested
further continuances on July 5, 1994 and August 22, 1994, which
were also granted.  The July and August 1994 court orders reflect
that new counsel, Mr. Wayne Emmons, had entered an appearance on
Carter's behalf.  Those orders extended pretrial dates from August
22, 1994 to October 4, 1994.  Meanwhile, State Hospital doctors,
John Anderson and O. Wendell Hall, filed another report with the
court, on September 29, 1994, finding Carter was malingering and
suffered only from a personality disorder.  Again, the doctors
concluded Carter was competent to stand trial and did not lack the
capacity to appreciate the criminality of his conduct at the time
he beat Mettler to death.
     The record next reflects yet another of Carter's continuance
motions filed on October 7, 1994.  In that motion, Mr. Emmons and
co-counsel, Edward Chandler, asserted that they had had their first
"lengthy" meeting with Carter on October 3, 1994, at the Marion
County Jail, and appeared at the scheduled October 4, 1994 pretrial
hearing to request a further extension in setting a trial date. 
Carter's October 7 motion set out a host of reasons, both personal
and business, but the most relevant appeared to be that counsel had
just been hired, Carter had been unavailable to them, and counsel
had just received the State Hospital's report.  At the October 4
hearing, the trial court proceeded to set a trial date for
November 7, 1994, but, after doing so, it promptly granted another
of Carter's continuance motions on November 1, 1994.  That
November 1 order extended trial to the court's next term in 1995. 
In the meantime, another State Hospital forensic evaluation report
was filed with the court on November 7, 1994, reflecting that
Carter was malingering and diagnosed with a personality disorder.
     Given the foregoing continuances, Carter then petitioned for
expenses to hire Jonathan J. Lipman, a neuropharmacologist, and
Marsha H. Little, a clinical neuropsychologist.  On January 12,
1995, the trial court granted an award of $2,500 to hire Dr.
Lipman, but denied any monies for Dr. Little.  On January 20,
1995, Carter again moved for a continuance, complaining he had not
had the time and money to adequately prepare for trial.  Once
again, Carter's motion was granted, and this time, the trial court
set a new trial date for May 1, 1995.
     Carter filed yet another motion for continuance on April 26,
1995, wherein he claimed further evaluation was needed.  The record
reflects this motion was not presented to or acted on by the trial
court, but Carter filed the same request again on May 1, 1995, the
day of trial.  Attached to Carter's May 1 motion was the
handwritten affidavit dated April 30, 1995, of Marsha H. Little,
wherein she stated Carter's competency to stand trial is
questionable because he is unable to process information in an
accurate way.  Little's affidavit further related that Carter's
ability to confer with his attorneys was impaired and he was unable
to effectively assist in his own defense.
     In denying Carter's motion, the trial court stated Carter had
waited until the last minute to ask for another continuance and the
affidavit he submitted was vague and failed to provide sufficient
information for the court to formulate a judgment as to Carter's
competency.  The trial court further indicated Carter could have
obtained the information he was now seeking months before, but
failed to do so.  Nonetheless, the trial court invited Carter to
put on testimony in opposition to the State's proof, which showed
Carter was competent to stand trial.  Carter declined to do so.
     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.  Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995);
Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).  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.  Bowen, 322 Ark. at 505.  The trial
court here gave Carter numerous continuances, months, and
opportunities to obtain proof bearing on his competency to stand
trial, but he waited until the last scheduled day of trial to
submit a brief handwritten statement by his clinical
neuropsychologist, stating in conclusory fashion that Carter's
competency to stand trial was "questionable," and that Carter was
unable to effectively assist in his own defense.  The trial court
clearly gave Carter every opportunity to prepare his defense for
trial and did not abuse its discretion in denying the last of
Carter's many continuance motions.  Having said that, we point out
that the trial court also enunciated that because insanity remained
an issue in the case, it would enter an appropriate order during
trial if it became convinced trial should not proceed.  These
remarks of the trial court bring us to Carter's second argument
that the trial court erred in refusing a mistrial motion after
Carter attempted suicide during trial.  
     The following events took place, leading to Carter's request
for mistrial.  After all evidence had been presented and before the
court had reconvened on the fourth day of trial, the trial court
was informed that Carter, while in custody, had overdosed on
medication.  The trial court, giving no reason, informed the jury
the trial would be continued until May 10, 1995.  It also
admonished the jury not to read media accounts of the trial or talk
to people concerning the trial.  By May 10, Carter had been
released by the hospital, and he returned to trial.  However,
before trial reconvened, Carter's counsel moved to be allowed to
reopen Carter's case to offer his suicide attempt as further proof
of his insanity.  The trial court stated it would grant counsels'
request, but it would then be required to allow the state to reopen
its case to show how Carter had attempted suicide on other
occasions when accused of crimes.  Counsel then withdrew the motion
to reopen their case. 
     Defense counsel then moved for mistrial, stating they had had
difficulty in conversing with Carter during trial.  Counsels'
examples were that when they asked Carter, "How do you feel?  Are
we doing better?" he responded, in a blank kind of way, "Mr.
Chandler, how are we doing?"  Also when asked what are you doing or
what are you thinking about, he replied, "I'm praying."
     In denying Carter's mistrial motion, the trial court stated as
follows:
          The Court has had the opportunity to view you in
     consultation with your client through the substantive
     portions of the trial.  We are down to closing arguments
     at this point.  [Carter] seemed very capable of helping,
     aiding and assisting you in discussing strategy and I
     have noted that and observed that throughout the trial. 
          Further, I have had the benefit of the testimony of
     four so-called experts.  I have listened to the expert
     testimony and am persuaded that Mr. Carter is competent
     to stand trial, and that's a decision for the court.
     A mistrial is an extreme remedy that should only be granted
when justice cannot be served by continuing the trial  Morgan v.
State, 308 Ark. 627, 826 S.W.2d 271 (1992); Taylor v. State, 303
Ark. 586, 799 S.W.2d 519 (1990).  Further, a defendant cannot be
allowed to abort a trial and frustrate the process of justice by
his own acts.  Morgan, 308 Ark. 627, 826 S.W.2d 271.
     In the present case, the trial court based its denial both on
expert testimony, and its own observations of Carter during trial
and Carter's interaction with his attorneys.  While Carter's
counsel contended his client did not respond to questions posed to
Carter as counsel thought Carter should have, the record actually
shows Carter made appropriate responses.  The trial court later
denied a motion to reevaluate Carter which was made before
sentencing based on its previous findings.  
     Carter cites Drope v. Missouri, 420 U.S. 162 (1974), and
argues due process is violated when a trial court fails to make
further inquiry into the defendant's competency and fails to give
adequate weight to defendant's suicide attempt and pretrial showing
of irrational behavior.  However, Drope is distinguishable in
significant ways.  There, the trial court had not determined
Drope's competency to stand trial, but instead, uncontradicted
evidence showed that Drope had manifested irrational behavior
before trial.  Here, Carter had been thoroughly evaluated and found
to be a malingerer, without psychosis, and competent to proceed to
trial.  Also, in Drope, the defendant was absent from his trial
after his suicide attempt; here Carter was present.  Again, unlike
Drope, the trial court here had previously determined Carter's
competency prior to trial and was able to observe Carter's ability
to consult with counsel both before and after his attempted
suicide.
     We also note Carter's reliance on Pate v. Robinson, 383 U.S. 375 (1966), where the Court held the uncontradicted evidence of
Robinson's disturbed behavior over a long period raised sufficient
doubt of his competence to stand trial, and it remanded the case
for a new trial.  However, Pate, too, is distinguishable from the
situation presented here.  In Pate, four witnesses expressed the
opinion that Robinson was insane.  The only contrary evidence
presented by the state was a stipulation by a doctor who offered
the opinion that Robinson knew the nature of the charges against
him and was able to cooperate with counsel, but made no finding of
sanity.  Again, here Carter had been evaluated on several occasions
and found competent.  Carter also was found to be a malingerer. 
While Carter had been afforded adequate time to obtain further
evidence bearing on his competency in advance of trial, he failed
to do so.  In sum, the trial court had ample evidence and reasons
to deny Carter's motion for mistrial.  
     Finally, Carter argues that the trial court should have
granted his motion for directed verdict with respect to burglary,
and premeditation and deliberation for capital murder.  We do not,
however, reach this issue because Carter is procedurally barred
since he failed to renew his motion at the close of this case. 
Heard v. State, 322 Ark. 553, 910 S.W.2d 633 (1995).   
     For the reasons above, we find no error and, after noting the
record of the trial has been reviewed pursuant to Ark. Sup. Ct. R.
4-3(h), we affirm.