Floyd Campbell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

FLOYD CAMPBELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-574

MARCH 12, 2003

APPEAL FROM THE HEMPSTEAD

COUNTY CIRCUIT COURT

[NO. CR-2000-163-2]

HONORABLE DUNCAN M.

CULPEPPER, JUDGE

AFFIRMED

Appellant Floyd Campbell was convicted by a jury of first-degree domestic battery and fined $10,000.00. For his sole point on appeal, he argues that the trial court erred in denying his motion for a continuance to call a material witness who was unavailable on the day of trial.

Patti Campbell, appellant's wife, testified for the State. She testified that at the time of the alleged offense on October 23, 1999, she and her husband were caring for three foster children. On that day at about 5:30 p.m., Mrs. Campbell went to the grocery store and took one of the children with her. Mr. Campbell remained at their house to take care of Chris, who was two years old, and the victim, David, who was eighteen months old. Mrs. Campbell testified that, when she left for the grocery store, the children were playing and David was functioning normally. When she returned thirty minutes later, there was an

ambulance at the house and Mrs. Campbell was informed that David had lost consciousness and was taken by helicopter to Arkansas Children's Hospital.

Mrs. Campbell testified that two days before David lost consciousness, she picked him up from daycare and he had a red mark on his head. On the following day, he came home from daycare with a large purple knot on the right side of his head. A daycare employee indicated that David had fallen and hit his head during a diaper change. Mrs. Campbell maintained that, other than sleeping, David did not lose consciousness during the two-day period before being hospitalized.

Mrs. Campbell's mother, Pat Rapert, testified that on the day of the alleged offense Mr. Campbell called her and stated that David was having a seizure. She rushed over to the house and upon arriving found David in Mr. Campbell's arms, unconscious and limp, making a gurgling sound. Ms. Rapert then transported David to the local hospital.

Dr. Chad Rogers, a doctor of pediatrics at Arkansas Children's Hospital, was among the physicians who attended to David. He testified that upon arriving at the hospital, David was taken immediately to the operating room for surgery. He was then taken to the intensive care unit, where he remained for a week.

Dr. Rogers indicated that the purpose of the surgery was to relieve pressure caused by a "very large bleed" to the head. David was diagnosed with a subdural hematoma on the left side of the brain as well as retinal hemorrhages. Dr. Rogers gave the opinion that, based on the history collected from the doctors at the hospital, the only explanation for David's condition was Shaken Baby Syndrome. He stated that there was no skull fracture,indicating that David's injuries were not caused by an event such as falling and hitting his head. Furthermore, he stated that subdural hematomas cannot develop over a period of two days, and that had the large bleed been caused by the fall at the daycare, David would have become very symptomatic that day.

Dr. Steven Schexnayder also treated David and stated, "I think everybody concurs that he had a severe closed head injury without evidence of having a skull fracture." He testified that this could happen from a shake injury or from a very forceful, high velocity impact injury. Dr. Schexnayder noted that in this case the subdural hemorrhage was primarily on the left side, but that the bruise and bump on David's head caused by the fall at the daycare center was on the right side. He indicated that when caused by a direct blow, the hemorrhage is generally under the point of impact. Dr. Schexnayder stated that David's injury is consistent with Shaken Baby Syndrome, and gave the opinion that "this child had an intentional head injury."

Mr. Campbell testified on his own behalf and stated that he has cared for sixteen to twenty children as a foster parent. He indicated that a couple of weeks prior to the incident at issue, he had custody of two older children who physically abused David, including an episode where one child held him down and beat his head on the floor. Mr. Campbell also testified about a prior automobile accident where David was in the car, but the doctor did not think he had been hurt. Mr. Campbell further asserted that about three weeks prior to the incident, David had a seizure and had to be taken to the doctor. Mr. Campbell testified that,on the day David fell unconscious, he was lying on the floor and shaking as if he was having another seizure.

Appellant's mother testified on his behalf and stated that he loves children and is very gentle. Another defense witness, Angela Dawson, testified that Mr. Campbell is not capable of "flying off the handle" with a child. A family service worker for the Department of Human Services also testified for Mr. Campbell, and she stated that he had a deep regard for David's safety and well being, and to her knowledge he never lost his patience.

After putting on several witnesses, Mr. Campbell moved for a recess because another witness, Dr. David Foscue, could not be available until 2:00 p.m. the next day. The trial court granted the motion, and the case was continued until then.

When the case was resumed at 2:00 p.m. the following day, Mr. Campbell's counsel stated that he talked to Dr. Foscue that morning and was told that he could not be present because he was attending a woman who was expecting a baby. As a result, he asked for another continuance. Alternatively, he offered a stipulation as to what Dr. Foscue's testimony would be. The trial court denied appellant's motion for continuance but permitted appellant's counsel to read a portion of Dr. Foscue's stipulated testimony.

The stipulated testimony included evidence that Dr. Foscue had been treating David since 1998. Dr. Foscue treated him for various injuries resulting from being beaten up, falling, and having a seizure. Dr. Foscue would have testified that he is very supportive of the Campbells and that they brought David to see him every time he was sick. However, the trial court disallowed appellant's request to read to the jury Dr. Foscue's opinion that Davidsuffered a hematoma from the fall at the daycare on the day before, resulting in the appearance of the head bleed on October 23, 1999.

Mr. Campbell now argues that the trial court erred in denying his motion for a continuance to call a material witness. He asserts that his conviction was based primarily on the opinions of two doctors who concluded that the subdural hemorrhage and retinal hemorrhaging were caused by Shaken Baby Syndrome. Mr. Campbell maintains that Dr. Foscue, who had been seeing the child for most of the child's life, was personally familiar with him and did not agree that this was a case of Shaken Baby Syndrome. Mr. Campbell admits that a continuance would have resulted in an inconvenience on everyone, including the jury. However, he contends that without Dr. Foscue's testimony the jury was placed in the position of having to completely disregard the opinions of the other doctors in order to acquit him. Mr. Campbell argues that Dr. Foscue's testimony was critical to his defense, that it would have created reasonable doubt as to his guilt, and that the trial court abused its discretion in failing to grant a continuance for Dr. Foscue to testify.

Rule 27.3 of the Arkansas Rules of Criminal Procedure provides, "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." Our supreme court has denoted the following 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, 145, 895 S.W.2d 524, 525 (1995). The appellant bears the burden of proving that the trial court's denial of a continuance was an abuse of discretion, and that burden entails a showing of prejudice. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

We hold that the trial court did not abuse its discretion in denying Mr. Campbell's motion for continuance. Since Dr. Foscue did not treat or examine the victim after he fell at the daycare or when he was taken to Arkansas Children's Hospital, his opinion as to the cause of David's condition, even if admissible, would likely have had less effect on the jury's decision than the opinions of David's treating physicians. Moreover, the likelihood of procuring the attendance of the witness at a later date was not established.

In addition, the filing of an affidavit by the movant is required under Ark. Code Ann. § 16-63-402(a) (1987), which provides:

A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

The supreme court has interpreted the above statute as mandating an affidavit to justify a continuance due to a missing witness when the State objects to the continuance. See Wilsonv. State, supra. The supreme court has further held that a trial court does not abuse its discretion in denying a motion for continuance when the motion is not in substantial compliance with Ark. Code Ann. § 16-63-402(a). Id. The State objected to the continuance in this case, and Mr. Campbell filed no affidavit or verified motion in support of his motion. Thus, the trial court committed no error in denying the motion.

Affirmed.

Bird and Griffen, JJ., agree.