Burns v. State

Michael BURNS v. STATE of Arkansas

CR 95-546                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1996


1.   Criminal law -- acquittal based on psychiatric report -- trial
     court's authority and discretion. -- Under Ark. Code Ann.  5-
     2-313 (1987), a trial court may, if it is satisfied that the
     defendant is suffering from mental disease or defect, enter a
     judgment of acquittal; section 5-2-313 permits the trial judge
     to acquit the defendant in cases of extreme mental disease or
     defect where the lack of responsibility on the part of the
     defendant is clear.

2.   Criminal law -- denial of motion to acquit based on
     psychiatric report was within trial court's authority and
     discretion. -- Where the state hospital's psychiatric report
     reflected that appellant lacked the capacity to conform his
     behavior to the law at the time he fatally shot one co-worker
     and wounded eight, but the state hospital's expert witnesses
     offered opinions concerning appellant's mental status that
     were far from clear, and the trial court concluded that
     appellant's case was neither one of extreme mental disease or
     defect nor one where the lack of responsibility on appellant's
     part was clear, the supreme court held that the trial court's
     ruling denying appellant's motion to acquit was clearly within
     its authority and discretion.

3.   Jury -- expert testimony -- jury not bound to accept expert
     testimony as conclusive -- jury to decide whether defendant
     has sustained burden of proving insanity -- jury is sole judge
     of credibility of witnesses. -- Although medical evidence on
     the issue of insanity is highly persuasive, a jury is not
     bound to accept opinion testimony of experts as conclusive,
     and it is not compelled to believe their testimony any more
     than the testimony of other witnesses; further, it is for the
     jury to decide whether a defendant has sustained the burden of
     proving insanity by a preponderance of the evidence; the jury
     is the sole judge of the credibility of the witnesses,
     including experts, and has the duty to resolve conflicting
     testimony regarding mental competence.

4.   Jury -- sufficient evidence existed for jury to find appellant
     was sane when he committed crimes. --    On the basis of the
     testimony of various co-workers who reported nothing unusual
     about appellant's behavior on the day of the shootings, the
     supreme court concluded that sufficient evidence existed for
     the jury to find that appellant was sane and legally
     responsible when he committed the crimes.

5.   Criminal law -- defendant not found guilty by reason of mental
     disease or defect -- jury not to be told of options available
     to trial court. -- The jury is not to be told of the options
     available to the trial court when a defendant is found not
     guilty by reason of mental disease or defect because such an
     instruction raises questions foreign to the jury's primary
     duty of determining guilt or innocence; to grant such a
     request would permit or encourage the jury to base its verdict
     on speculation regarding the defendant's subsequent
     disposition rather than on the law and evidence concerning his
     mental responsibility at the time of the crimes.


     Appeal from Union Circuit Court; John M. Graves, Judge;
affirmed.
     Janet L. Thornton, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Tom Glaze, Justice.

*ADVREP1*






MICHAEL BURNS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR95-546

Opinion Delivered:  1-29-96

APPEAL FROM THE CIRCUIT COURT
OF UNION COUNTY, ARKANSAS, NO.
CR93-110; HONORABLE JOHN M.
GRAVES, CIRCUIT JUDGE 


AFFIRMED





                  TOM GLAZE, Associate Justice

     On February 3, 1993, appellant Michael Burns entered his
workplace possessing firearms, and commenced firing them.  As a
result, he killed one and wounded eight co-workers.  After the
state charged Burns with capital murder, seven counts of attempted
murder and three counts of aggravated assault, Burns raised the
defense of mental disease or defect, and requested a psychiatric
examination.  Upon receipt of the Arkansas State Hospital's report,
reflecting Burns lacked the capacity to conform his behavior to the
law at the time of the shootings, he filed a pretrial motion for
acquittal.  After a hearing, the trial court denied Burns's motion. 
At trial, the only issue in dispute was whether Burns was legally
responsible at the time of the shooting spree.  The jury found
Burns guilty of all charges, and sentenced him to life imprisonment
without parole.
     Burns's arguments basically are two.  First, Burns contends
that, because the state hospital found him insane at the time he
committed the crimes, the trial court should have granted his
motion for acquittal prior to trial.  He urges that, since the
state failed to put forth any medical evidence to rebut the state
hospital's findings, the trial court erred in allowing his case to
go to trial on the merits.  We disagree.  
     In Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992),
Davasher filed a motion for acquittal on the basis of mental
disease or defect.  Davasher had introduced uncontroverted medical
evidence that he was a paranoid schizophrenic.  This court held
that, although the testimony regarding Davasher's mental illness
was not rebutted by other medical testimony, there was no
requirement that the trial court enter a judgment of acquittal. 
Id. at 169.
     Under Ark. Code Ann.  5-2-313 (1987), a trial court may, if
it is satisfied that the defendant is suffering from mental disease
or defect, enter a judgment of acquittal.  In Westbrook v. State,
274 Ark. 309, 624 S.W.2d 433 (1981), this court stated that  5-2-
313 permits the trial judge to acquit the defendant "in cases of
extreme mental disease or defect where the lack of responsibility
on the part of the defendant is clear."  (Emphasis added.)  
     In the present case, the state hospital's expert witnesses
offered opinions concerning Burns's mental status that were far
from being clear.  For example, Dr. John R. Anderson testified
that, while a person, like Burns, who suffers from delusional
paranoid disorders is very difficult to treat, he may have periods
of remission.  Anderson discussed various factors that weighed in
favor of Burns's sanity and reflected his understanding of the
ultimate wrongfulness in killing someone.  He opined that Burns's
sanity was a jury question.  In addition, Dr. O. Wendall Hall
testified, stating that, although his opinion was that Burns lacked
capacity to conform his conduct to requirements of law at the time
of the crimes, "it was a fairly close call -- a little over 50%
that he probably was not responsible."  Hall added Burns's case is
not "black and white."  In hearing the testimony of these experts,
the trial court concluded Burns's case is neither one of extreme
mental disease or defect, nor one where the lack of responsibility
on the part of Burns is clear.  We hold that the trial court's
ruling denying Burns's motion to acquit was clearly within its
authority and discretion.  Davasher, 308 Ark. at 169, 823 S.W.2d  at
872. 
     At this point, we mention that, at trial, Burns duly moved for
directed verdict, contending the state failed to show Burns
possessed the requisite intent and motive to commit the crimes with
which he was charged.  The question on appeal is whether there is
substantial evidence to support the verdict.  Id. 
     Doctors Anderson and Hall essentially repeated their testimony
given at the pretrial hearing.  In addition, the state offered
other evidence showing Burns did not exhibit any conduct which
indicated to his co-workers that he was not able to control his
behavior on the day of the shootings.  For example, David Washam
testified he had seen Burns earlier in the morning when Burns was
running a press "just like normal," and Washam noticed nothing
unusual about Burns.  Don Jensen testified he was working next to
Burns on the morning of the shooting, and Burns was running a
machine.  James French, who worked at a press machine next to Burns
from 6:00 a.m. to 11:30 a.m., failed to notice any difference in
Burns that day.  Luther McDuffie saw Burns that morning, and
testified Burns was the "same old Mike."  Aaron Hicks testified
Burns was no different on the morning of the shooting from any
other day.  Finally, James Herndon, Burns's supervisor for
approximately twenty years, testified he had daily contact with
Burns, and there was nothing unusual about Burns on the day of the
shooting.  Herndon described Burns as a top-notch, cooperative
employee for the last sixteen years.
     While medical evidence on the issue of insanity is highly
persuasive, a jury is not bound to accept opinion testimony of
experts as conclusive, and it is not compelled to believe their
testimony any more than the testimony of other witnesses.  Bowen v.
State, 322 Ark. 483, ____ S.W.2d ____ (1995).  Further, it is for
the jury to decide whether a defendant has sustained the burden of
proving insanity by a preponderance of the evidence.  Phillips v.
State, 314 Ark. 531, 863 S.W.2d 309 (1993).  The jury is the sole
judge of the credibility of the witnesses, including experts, and
has the duty to resolve conflicting testimony regarding mental
competence.  Id.  Based on the testimony above, we conclude 
sufficient evidence existed for the jury to find that Burns was
sane and legally responsible when he committed the crimes.
     Burns's second primary argument arises from the trial court's
denial of his pretrial motion to voir dire the jurors regarding
their knowledge of what would happen to Burns if a verdict of not
guilty by reason of mental disease or defect was rendered.  He
asked the trial court to allow him to introduce evidence concerning
what would happen and proffered an instruction Burns asked be given
to the jury at the end of the trial.
     This court has repeatedly held that the jury is not to be told
options available to the trial court when a defendant is found not
guilty by reason of mental disease or defect because such an
instruction raises questions foreign to the jury's primary duty of
determining guilt or innocence.  Williams v. State, 320 Ark. 67,
894 S.W.2d 923 (1995); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 114 (1991); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920
(1991); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1981); Curry
v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Campbell v. State.
216 Ark. 878, 228 S.W.2d 470 (1950).  In Williams we were asked for
the same relief Burns requests here, and stated that, to grant such
a request would permit or encourage the jury to base its verdict on
speculation regarding the defendant's subsequent disposition rather
than on the law and evidence as to his mental responsibility at the
time of the crimes.  The Williams court concluded that, for twenty-
five years, this court has adhered to this sound reasoning, and
declined Williams's suggestion to repudiate it.  We find nothing in
Burns's argument here to compel us to depart from our decision in
Williams.
     Because we find no error, we affirm.
     Pursuant to Ark. Sup. Ct. R. 4-3(h), the state has reviewed
the record in its entirety and has found no other rulings adverse
to Burns that involve prejudicial error.