Shawn Hardin Gore v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

SHAWN HARDIN GORE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-794

April 27, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR-2003-1561]

HON. WILLIAM A. STOREY,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this criminal case was charged with multiple offenses, including robbery, habitual offender, and possession of methamphetamine. He raised the defense of mental disease or defect to all of the charges but, after a hearing on March 26, 2004, was found competent to stand trial. After jury trials, he was convicted of those offenses and sentenced to ten years' imprisonment for robbery and thirty years' imprisonment for possession of methamphetamine as a habitual offender. On appeal, appellant argues that there is no substantial evidence to support the trial court's finding that he was competent to stand trial; that the trial court abused its discretion in failing to order a full examination and report pursuant to Ark. Code Ann. § 5-2-305(c) (Supp. 2003) to determine his mental condition; and that the trial court abused its discretion in failing to raise the defense of mental disease or defect on its own in light of appellant's disjointed testimony at trial. We affirm.

A person lacking the capacity to understand the proceedings against him or to assist in his defense shall not proceed to trial as long as the incapacity endures. Ark. Code Ann.§ 5-2-302 (Supp. 2003). A criminal defendant is presumed to be competent, however, and the burden of proving incompetence is on the accused. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). The test for determining an accused's competency to stand trial is whether he is aware of the nature of the proceedings against him and is capable of cooperating effectively with his attorney in the preparation of his defense, and we will affirm a finding of fitness to stand trial if it is supported by substantial evidence. Id. Here, the record shows that, after appellant gave notice of his intent to raise the defense of mental disease or defect, the trial court ordered a mental examination and report pursuant to Ark. Code Ann. § 5-2-305(b)(1). The examination was conducted by Dr. Robin Ross, a forensic psychiatrist. After examining appellant for one and three-quarter hours and administering several tests, she determined that appellant had no mental disease or defect that would relieve him of responsibility for the crimes he was charged with committing, and that he was competent to stand trial. We hold that her testimony is substantial evidence to support the trial court's finding of competency.

Appellant next argues that the trial court abused its discretion in failing to order a full examination and report pursuant to Ark. Code Ann. § 5-2-305(c) to determine appellant's mental condition. We find no merit in this argument. Although the trial court is authorized to order further examination at the state hospital pursuant to § 5-2-305(c), it has been held that such additional testing is not clearly warranted when the request is based solely on statements of the defendant and defense counsel. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990). In the present case, the only sources of evidence favoring additional testing were appellant's own statements and those of his parent. The trial court found these statements to lack credibility and, given the quantity and quality of the medical evidence to the contrary, it cannot be said that he abused his discretion in failing to order further examination. See id.

Finally, appellant contends that the trial court abused its discretion in failing to raise the defense of mental disease or defect on its own in light of appellant's disjointed testimony at trial. We note that it would have been superfluous for the trial court to have raised this defense because it had been specifically raised by appellant prior to trial, because evidence relating to the defense was presented at trial, and because the defense was actually submitted to the jury. It appears that the jury, like the trial judge, simply believed that appellant's aberrant behavior at trial was a conscious device employed by the appellant in the belief that it would benefit him at trial.

The ultimate issue to be resolved is whether the evidence raised a reasonable doubt about the appellant's competency, considering any irrational behavior exhibited by the defendant, his demeanor in the proceedings, and any prior medical opinion on competence to assist in his defense. Welter v. State, 26 Ark. App. 75, 759 S.W.2d 814 (1988). Here, there was no conflicting medical evidence indicating that appellant was not competent and no allegation that his mental condition had changed since the time of the initial report. Although appellant did appear to behave irrationally at times at trial, the trial judge expressly stated that he believed this behavior was deliberate. See id. On our review of the record, we cannot say that the trial judge was required to take action sua sponte, and we find no error on this point.

Affirmed.

        Gladwin and Bird, JJ., agree.