Brouce Holden v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR08-361
Opinion Delivered N OVEMBER
BROUCE HOLDEN
APPELLANT
5, 2008
APPEAL FROM THE LONOKE COUNTY
CIRCUIT COURT,
[NO. CR 2007-145]
V.
HONORABLE LANCE L. HANSHAW,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Judge
CRIM INAL LAW – M ENTAL- HEALTH EVALUATION – THERE WAS NOTHING TO SUPPORT THE NECESSITY
OF AN EVALUATION.– The trial court did not abuse its discretion in declining to order a mentalhealth evaluation for appellant; there was nothing in the record to support the necessity of a mental
evaluation except unsubstantiated statements of defense counsel based on one conversation with
appellant’s mother; the motion itself did not give notice of anything specific; faced with only a
second-hand account of appellant’s mental state, no explanation for the delay in filing, and the
knowledge that defense counsel needed more time due to scheduling conflicts, the appellate court
could not say that the trial court’s decision to deny appellant’s request for mental evaluation was
clearly erroneous.
Sharon Kiel, for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
Appellant Brouce Holden was convicted by a Lonoke County jury on September 20,
2007, of residential burglary, attempted arson, and violating a protection order.
On appeal, he
contends that the trial court abused its discretion in declining to order a mental-health
evaluation pursuant to Arkansas Code Annotated section 5- 2- 305(a) (Supp. 2007). We affirm
the trial court’s ruling.
Statement of Facts
On April 19, 2007, the State filed a felony information alleging appellant committed
the offenses of residential burglary, criminal attempt to commit arson, criminal mischief in
the second degree, and violation of a protection order.
2007.
Trial was set for August 29 and 30,
On August 20, 2007, a motion for continuance was filed by appellant based upon his
hiring of private counsel.
2007.1
This motion was granted, and the trial was reset for September 19,
Appellant’s new counsel filed a motion for mental-health evaluation on September 17,
2007, pursuant to Arkansas Code Annotated section 5-2-305.
At the pre- trial hearing held September 18, 2007, no testimony was heard. Appellant’s
counsel argued that he filed the motion for mental-health evaluation based upon a conversation
he had had the previous day with appellant’s mother, Vickie Nance. Ms. Nance was not present
to testify, but counsel for appellant stated that Ms. Nance had indicated to him that appellant
suffered from depression and periods of blackouts.
appellant was of sound mind.
Ms. Nance had questioned whether
Defense counsel acknowledged that appellant had problems with
alcohol and that appellant had a previous DWI, fourth-offense conviction.
take the stand.
Appellant did not
The State’s attorney stated that in his conversations with Ms. Nance, she
indicated she had paid for appellant to have substance-abuse rehabilitation on more than one
occasion, and she would like an explanation as to why her son would treat her in such a way for
an extended period of time.
1
The trial was continued from September 18, 2007, to September 19, 2007, in order
to accommodate a pre-trial hearing on appellant’s motion for mental-health evaluation,
which was held on September 18, 2007.
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The State then stated it was ready for trial the following day. Defense counsel told the
trial court that additional time would be useful to prepare for trial, and that he had a scheduling
conflict.
The trial court denied the motion for mental-health evaluation, stating that it did not
find sufficient cause or reason for it to suspect that appellant had a mental disease or defect.
Following the trial, the jury acquitted appellant of criminal mischief, but found him
guilty of residential burglary, criminal attempt to commit arson, and violating a protection
order. He was sentenced to 360 months for each of the burglary and arson convictions and
twelve months for violating the protective order.
These sentences were ordered to run
concurrently. Appellant filed a timely notice of appeal, and this appeal followed.
Statement of Law
It is well settled that the conviction of a defendant while he is legally incompetent to
stand trial violates due process. Lawrence v . State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).
Arkansas Code Annotated section 5-2-302 expressly prohibits trying a person who lacks the
capacity to understand the proceedings against him or to assist effectively in his own defense
because of mental disease or defect.
A criminal defendant is ordinarily presumed to be
mentally competent to stand trial, and the burden to prove otherwise is on the defendant. Mask
v. State, 314 Ark. 25, 869 S.W.2d 1 (1993). The test of competency to stand trial is whether
a defendant has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding and whether he has a rational and factual understanding of the
proceedings against him. Haynes v . State, 346 Ark. 388, 58 S.W.3d 336 (2001); Lawrence,
supra.
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CACR08-361
When reviewing issues of statutory interpretation, the basic rule is to give effect to the
intention of the legislature, making use of common sense, and assuming that when the
legislature uses a word that has a fixed and commonly accepted meaning, the word at issue has
been used in its fixed and commonly accepted sense.
Yamaha Motor Corp. v . Richard’s
Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); State v. Joshua, 307 Ark. 79, 81, 818
S.W.2d 249, 250 (1991).
Arkansas Code Annotated section 5-2-305(a)(1) states that the trial court shall
immediately suspend proceedings if the defendant files notice that he will put his fitness to
proceed in issue or if there is otherwise reason to doubt the defendant’s fitness to proceed.
Use of the word “shall” makes compliance with a statute mandatory. See Smith v. State, 347
Ark. 277, 61 S.W.3d 168 (2001); Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113
(2001).
Upon suspension of the proceedings, the trial court is required to enter an order
directing a mental examination of the defendant under one of the means outlined in the statute.
See Ark. Code Ann. § 5-2-305(b)(1).
This statute is intended to prevent the trial of anyone
Lawrence v. State, supra.
The trial court’s determination of the
issue is reviewed under the “clearly erroneous” standard.
Hardaway v. State, 321 Ark. 576,
who is legally incompetent.
906 S.W.2d 288 (1995).
Argument
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Appellant contends that he put the trial court on notice on September 17, 2007, that his
fitness was at issue and requested a mental-health evaluation and hearing pursuant to Arkansas
Code Annotated section 5-2-305, which states in pertinent part as follows:
(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately
suspend any further proceedings in a prosecution if:
(A) A defendant charged in circuit court files notice that he or she intends to rely upon
the defense of mental disease or defect;
(B) There is reason to believe that the mental disease or defect of the defendant will or
has become an issue in the cause;
(C) A defendant charged in circuit court files notice that he or she will put in issue his
or her fitness to proceed; or
(D) There is reason to doubt the defendant’s fitness to proceed.
Ark. Code Ann. § 5-2-305(a)(1)(A)-(D).
Appellant contends that a plain review of the statutory language reflects a requirement
of a mental-health evaluation upon proper notice.
He maintains that at the pre-trial hearing
held the day before trial, he asked for a mental evaluation.
His counsel stated it was unclear
whether appellant was unfit during the time of the alleged offense. He argues that our supreme
court in Smith v . Fox, 358 Ark. 388, 193 S.W.3d 238 (2004), ruled that when a defendant
requested a state mental evaluation, it was error for the lower court to deny that request based
upon the fact that defendant had been previously given a federal mental evaluation some months
earlier.
Appellant maintains that the statutory language in section 5-2- 305 is mandatory, not
discretionary.
The State contends that the trial court need not order an evaluation where it has no
reason to believe that a defendant’s competency or a mental disease or defect will be an issue
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at trial.
See Ark. Code Ann. § 5-2-305(a).
Further, the State argues that Arkansas Code
Annotated section 5-2-304(a) (Repl. 2006), requires that, when a defendant intends to raise
mental disease or defect as a defense in a prosecution or puts in issue his fitness to proceed,
the defendant shall notify the prosecutor and the court at the earliest practicable time.
Appellant was declared indigent and appointed counsel on April 23, 2007.
His appointed
counsel represented him and received notice of the original jury-trial setting of August 29 and
30, 2007. Appellant moved to substitute private counsel on August 20, 2007, and that motion
was granted. A continuance was also granted, and the trial date was moved to September 18,
2007.
On September 17, 2007, appellant filed his motion requesting a mental-health
evaluation. The trial date was then moved to September 19, 2007, and a hearing on appellant’s
motion was held September 18, 2007.
Thus, the State contends that appellant’s filing of his
motion for mental-health evaluation on September 17, 2007, was not the “earliest practicable
time” as required by the statute.
The State argues that appellant, relying on Smith v. Fox, supra, contends that by simply
filing notice pursuant to sections 5-2-304 and 305, the trial court had a duty to grant him a
mental evaluation as a matter of law.
However, in Smith v. Fox, Smith maintained that he
suffered from a mental disease or defect from his plea and arraignment forward.
He actively
objected to the introduction of the federal evaluation and sought motions for reconsideration,
continuances, and ultimately sought an extraordinary writ to address the matter.
Appellant’s
circumstances herein are not comparable.
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The State argues that there is nothing in this record to support the necessity of a mental
evaluation except unsubstantiated statements of defense counsel based on one conversation
with appellant’s mother. The motion itself did not give notice of anything specific.
In denying
the motion, the trial court held that there was insufficient cause presented to suspect appellant
suffered from a mental disease or defect.
Faced with only a second-hand account of
appellant’s mental state, no explanation for the delay in filing, and the knowledge that defense
counsel needed more time due to scheduling conflicts, we cannot say that the trial court’s
decision to deny appellant’s request for mental evaluation was clearly erroneous.
Affirmed.
VAUGHT and HUNT , JJ., agree.
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