Miller v. State

Steven Wade MILLER v. STATE of Arkansas

CR 96-892                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 14, 1997


1.   Motions -- motion for continuance -- review of. -- The grant
     or denial of a continuance is within the sound discretion of
     the trial court, and the decision will not be reversed absent
     an abuse of discretion amounting to a denial of justice.

2.   Trial -- accused presumed competent -- burden of proving
     incompetence on accused. -- An accused is presumed competent
     to stand trial, and the burden of proving incompetence is on
     the accused.  

3.   Motions -- deciding continuance motion -- factors considered.
     -- The following factors are to be considered by the 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. 
     
4.   Motions -- motion for continuance denied at trial -- no abuse
     of discretion found. -- The trial court did not abuse its
     discretion in denying appellant's motion for continuance where
     both evaluations conducted on appellant indicated that he
     neither suffered from a mental disease or defect at the time
     of the commission of the crime nor was incapable of assisting
     in his own defense; not only was it apparent that the defense
     was merely conducting a fishing expedition into possible,
     hypothetical mental disorders, it was clear from the record
     that appellant was not diligent in attempting to secure the
     necessary information on which to build a defense of mental
     disease or defect and that a continuance for the purpose of
     obtaining additional testing was unwarranted in light of the
     fact that every evaluation conducted on appellant had shown
     that he did not lack the capacity to appreciate the
     criminality of his actions or to conform his conduct to the
     requirements of the law; the probable effect of the testimony
     at trial would have been of little benefit to his defense; the
     trial court's denial of the continuance was affirmed.

5.   Appeal & error -- no convincing authority cited for argument -
     - argument not considered. -- It was apparent from the
     doctor's testimony that appellant was not diagnosed with the
     personality disorder because he did not exhibit sufficient
     signs or recognized traits of such disorder, and appellant
     cited no convincing authority or argument for his novel
     proposition that he was not diagnosed with the disorder
     because of his youth; because it was not apparent without
     further research that the argument was well taken, the supreme
     court would not consider it. 

6.   Appeal & error -- pretrial proceeding not included in record -
     - appellant failed to meet his burden of providing record
     sufficient to support his argument on appeal. -- Appellant's 
     contention that it was error for the trial court to deny his
     motion to transfer the charge to juvenile court without first
     having conducted a hearing on the motion as provided in Ark.
     Code Ann.  9-27-318(d) (Supp. 1995) was not addressed by the
     supreme court where the pertinent hearing was not included in
     the record; without a record of the pretrial proceeding, a
     meaningful review of appellant's argument could not be
     conducted; it is the appellant's burden to produce a record
     sufficient to support his arguments on appeal. 

7.   Juveniles -- transcript of transfer hearing not provided --
     trial court assumed to have ruled correctly -- trial court's
     decision not to transfer appellant to juvenile court affirmed.
     -- Where appellant was charged with capital murder for the
     robbery and resulting death of a clerk, who was shot twice in
     the head by appellant, and appellant failed to provide a
     transcript of the hearing on the motion to transfer to
     juvenile court, the supreme court could only assume that the
     trial court ruled correctly; it was the appellant's burden to
     produce a sufficient record on appeal; the trial court's
     decision not to transfer the charge of capital murder against
     appellant to juvenile court was affirmed.

8.   Motions -- motion for directed verdict -- how to properly
     preserve for appeal. -- In order to preserve a sufficiency
     argument for appeal, proof of the element of the crime that is
     alleged to be missing must be specifically identified in a
     motion for a directed verdict, or the issue is deemed not
     preserved for appeal; moreover, while it is true that Ark.
     Sup. Ct. R. 4-3(h) requires the court to review the record for
     error in life and death cases, this review presupposes that a
     proper objection was made at trial. 

9.   Motions -- directed-verdict motions not sufficiently specific
     -- review precluded on appeal. -- Because appellant failed to
     make a specific motion for directed verdict, indicating the
     particular deficiencies in the State's proof, it was as if he
     failed to object at all, and that failure below precluded
     review of the sufficiency of the evidence on appeal.  

10.  New trial -- decision to grant or deny within sound discretion
     of trial court -- no abuse of discretion found. --  Where
     appellant filed a motion for new trial on the grounds that it
     was error for the trial court to have denied his motion for
     continuance and that such ruling deprived him of the
     opportunity to have been better prepared to present a defense
     of not guilty by reason of mental disease or defect, the
     supreme court found no abuse of discretion and affirmed the
     trial court's denial of the motion for new trial for the
     reasons already stated with regard to the trial court's denial
     of the continuance; the decision of whether to grant or deny
     a motion for a new trial lies within the sound discretion of
     the trial court, and the supreme court will not reverse that
     decision absent an abuse of discretion.


     Appeal from Columbia Circuit Court; Larry Chandler, Judge;
affirmed.
     Q. Byrum Hurst, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  C. Joseph Cordi, Jr., Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Steven Wade Miller appeals the judgment of
conviction of the Columbia County Circuit Court convicting him of
capital murder and sentencing him to life imprisonment without the
possibility of parole.  Our jurisdiction is pursuant to Ark. Sup.
Ct. R. 1-2(a)(2) (as amended by per curiam order July 15, 1996). 
Appellant raises five points for reversal.  We find no error and
affirm.
     Appellant and Heath Kennedy were arrested and charged with
capital murder for the March 5, 1994 shooting death of Leona
Cameron, a clerk of the Subway Sandwich Shop in El Dorado,
Arkansas.  Heath Kennedy was tried first and convicted of capital
murder.  This court affirmed the conviction in Kennedy v. State,
325 Ark. 3, 923 S.W.2d 274 (1996).  Details of the crime are
outlined in that opinion, and we will not duplicate recitation of
those facts except as they may be pertinent to the particular
issues raised in this appeal.
                     Motion for Continuance
     Appellant contends that the trial court erred in denying his
motion for continuance, which was made on the basis of the alleged
necessity to secure expert witnesses to review previous psychiatric
testing conducted on Appellant by doctors at the Arkansas State
Hospital.    
     The grant or denial of a continuance is within the sound
discretion of the trial court, and the decision will not be
reversed absent an abuse of discretion amounting to a denial of
justice.  Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996).  An
accused is presumed competent to stand trial, and the burden of
proving incompetence is on the accused.  Id.  A.R.Cr.P. Rule 27.3
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.
     The following factors are to be considered by the 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.  Turner, 326 Ark. 115, 931 S.W.2d 86.  
     The following facts are relevant to this issue.  Appellant was
charged with capital murder on March 9, 1994, and subsequently
entered a plea of not guilty by reason of mental disease or defect. 
On August 5, 1994, the defense filed a motion requesting that
Appellant be transferred to the University of Arkansas for Medical
Sciences Hospital in Little Rock for examination by Dr. Daryl
Matthews, who had been retained by Appellant, to determine the
existence of any physical, emotional, or psychological defects. 
The trial court granted the motion on September 22, 1994.  
     On December 2, 1994, the defense filed a motion for
continuance on the ground that the examination had not taken place
as of that date and, thus, it had not been determined whether
Appellant was fit to proceed with trial.  That motion was granted
by order filed the same date.  On December 15, 1994, the trial
court entered an order for an evaluation of Appellant to be
conducted at the Arkansas State Hospital.  
     Approximately seven months later, on July 13, 1995, a letter
from the prosecuting attorney was filed with the circuit clerk's
office notifying the trial court that Appellant's evaluation had
been received from the state hospital.  Included with the
prosecutor's letter, was a copy of a letter to the trial court,
succinctly reflecting the scientific conclusions, and the
accompanying forensic evaluation completed by Dr. O. Wendall
Hall, III and Dr. John R. Anderson.  Contained at the end of the
letter was a list of those persons, including Appellant's counsel,
to whom a copy of the letter had been sent.  The evaluation
indicated that Appellant was capable of cooperating in the
preparation of his defense and that, at the time of the commission
of the crime, Appellant did not lack the capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law.  The evaluation further indicated that two
Minnesota Multiphasic Personality Inventory--II tests had been
given to Appellant, but that the first test was determined to be
invalid and was thus not scored.  The reason provided in the
evaluation for the invalidity of the first MMPI-II test was that,
"Mr. Miller either did not read the items or read and answered the
items in an attempt to over report psychiatric problems."  
     On August 11, 1995, the defense filed a motion for additional
testing, on the recommendation of Appellant's retained
psychiatrist, Dr. Sarah L. Strebeck, to determine whether Appellant
suffered from organic brain disorder.  Two weeks later, the defense
filed a motion for appointment of an expert to conduct the
examination for possible organic brain damage resulting from his
possible involuntary exposure to alcohol while his mother was
pregnant with him.  The motion for additional testing was granted
on October 2, 1995, and was to be provided at the state hospital as
determined by Dr. Strebeck.  
     On November 1, 1995, the defense filed a second motion for
continuance on the ground that Appellant was currently undergoing
additional testing at the state hospital and that the defense did
not believe there would be enough time to obtain the results of the
testing in order to prepare for the trial, which was set for
November 13, 1995.  In an order filed November 7, 1995, the trial
court granted the continuance and reset the trial for January 16,
1996.     
     A second forensic evaluation from the state hospital, filed on
December 8, 1995, reflected that Appellant had been examined by
Dr. Joe Alford for neurological assessment.  Dr. Alford's report
indicated:
     Taken together, available data suggest relatively mild to
     moderate cortical dysfunction that is primarily evidenced
     through deficits on memory-based tasks and tasks
     involving ongoing attention and concentration.  At the
     same time, he is of average intelligence, and he
     manifests some real strengths on complex cognitive tasks. 
     He does display the kind of weakness on tasks requiring
     executive functions that is sometimes associated with
     poor impulse control.  I find no evidence to suggest that
     Mr. Miller suffers from residuals from Fetal Alcohol
     Syndrome, since he does not display the intellectual
     deficits that are almost invariably associated with that
     syndrome.
The report further indicated that the additional tests conducted on
Appellant were interpreted as being normal.  
     Over one month later, on January 11, 1996, the defense filed
several motions, one of which was for the appointment of a forensic
psychologist to interpret the two MMPI-II tests given to Appellant
in June 1995.  The defense claimed that it had not been provided
with the actual tests until January 9, 1996, when defense counsel
demanded the tests from the prosecutor.  The defense also filed a
third motion for continuance on the ground that Appellant was
"shocked" by the findings of Dr. Alford's assessment and that, on
the advice of its two retained expert witnesses, it needed a
continuance in order to procure a neuropsychologist from out of
state, because of the alleged difficulty in obtaining one of
competence in Arkansas.
     A hearing was conducted on the third motion for continuance on
January 12, 1996.  After hearing testimony from Dr. Alford and
extensive argument from both sides, the trial court denied
Appellant's motion on the bases of the evidence presented by
Dr. Alford and the forensic evaluations completed at the state
hospital, neither of which indicated any reason for additional
testing.  The trial judge stated that he had read the information
submitted by the defense's two consultants, but that he saw no need
for further testing because the defense experts merely referred to
hypothetical mental defects, rather than some probable or concrete
mental ailments.  The trial court then instructed Dr. Alford to
interpret the two previously administered MMPI-II tests, which the
doctor stated could be done in a matter of hours, and provide that
information to the defense.  The court then denied the motions for
the appointments of additional experts for the defense.
     Additionally, it is worth noting that during that hearing,
defense counsel argued that the State had not provided them with
the results of the two MMPI-II tests until they had demanded them
from the prosecutor on January 9, 1996.  When asked by the trial
court whether it was their position that they were unaware of the
results of the two tests until that date, defense counsel indicated
that they were.  The trial court then confronted them with a letter
to defense counsel from their own expert, Dr. Jonathan J. Lipman,
dated December 26, 1995, which referenced "both MMPI evaluations." 
Defense counsel then conceded that the two tests were referred to
in the original report from the state hospital, but that it was not
until they had consulted Dr. Lipman, that they became aware of the
significance of the tests, particularly the first test that was not
scored.       
     On January 17, 1996, the first day of trial testimony, the
defense renewed its motion for continuance for the above reasons,
and also for the reason that it had just received on the previous
evening a packet of handwritten notes of the examiners concerning
Appellant's evaluations at the state hospital.  The motion was
again denied by the trial court, stating:
     [T]he Defense has the burden of proof of mental disease
     or defect.  And it seems to me that everything has just
     been put on hold until we got ready to go to trial this
     time.  And, now, all of a sudden there's this mad rush to
     get all this information and postpone the trial again so
     that more doctors can be brought in.
          . . . .
          As you will recall, Mr. Hurst, we had a hearing
     scheduled for January the 3rd, I believe it was on your
     motion for, on the fitness of this Defendant to proceed
     to trial.  At your request, that hearing was canceled. 
     It seems to me that at that time you had Dr. Lippman's
     [sic] wish list that he had sent to you on December the
     26th.  And it would have been an ideal time, I think, to
     have addressed all those issues right then.
     We are convinced that the trial court did not abuse its
discretion in denying the motion for continuance.  Both evaluations
conducted on Appellant indicated that he had not suffered from a
mental disease or defect at the time of the commission of the
crime, nor that he was incapable of assisting in his own defense. 
The first evaluation also indicated that the first MMPI-II test was
invalid and that such invalidity may have been from Appellant's
attempts to purposely appear psychotic.  Defense counsel admitted
that they were aware of the results of the MMPI-II tests because
they were included in the original forensic evaluation, which was
filed with the court in July 1995.  The fact that they claimed to
have been unaware of the tests' significance until they had
retained their own expert witnesses is of little consequence,
because, as the trial court observed, they were aware of the need
to review those tests upon receipt of Dr. Lipman's letter over two
weeks before they went to the prosecutor's office to obtain copies
of the tests.  Thus, not only was it apparent that the defense was
merely conducting a fishing expedition into possible, hypothetical
mental disorders, it was further apparent that they had not been
diligent in seeking the information they requested.  
     It was Appellant's burden to prove the existence of a mental
disease or defect, which he could have easily attempted to do on
his own.  Instead, the defense chose to employ the strategy of
waiting to see what the State's doctors would find and only then
retaining their own experts to double-check the results.  Given
that Appellant was concerned about the possible bias of the state-
funded experts, we cannot understand why he did not pursue an
independent MMPI-II test from one of his retained experts long
before the time set for trial.  
     In short, it is clear from the record that Appellant was not
diligent in attempting to secure the necessary information on which
to build a defense of mental disease or defect.  It is equally
clear that a continuance for the purpose of obtaining additional
testing was unwarranted in light of the fact that every evaluation
conducted on Appellant had shown that he did not lack the capacity
to appreciate the criminality of his actions nor to conform his
conduct to the requirements of the law.  As such, the probable
effect of the testimony at trial would have been of little benefit
to his defense.  We therefore find no abuse of discretion and
affirm the trial court's denial of the continuance.               
               Sufficient Psychiatric Examination
     Appellant, who was sixteen years old when he allegedly
committed the murder, contends that his constitutional rights to
equal protection under the law and a fair trial were violated
because he had not been given the same mental evaluation as adult
defendants charged with the same crime.  His argument appears to
center around the testimony of Dr. Alford, that, according to his
training and experience with the DSM-IV, the standard diagnostic
manual written by the American Psychiatric Association, he could
not consider diagnosing Appellant with borderline personality
disorder until he was eighteen years of age.  During the trial,
when asked by defense counsel whether "the truth of the matter is
that he's not getting that diagnosis simply because he wasn't 18
years old," Dr. Alford responded that, although Appellant had some
traits that may fall within a borderline personality disorder,
"even at age 18 I would not diagnose [Appellant] as having that"
disorder.  Additionally, in the pretrial hearing conducted on
January 12, 1996, Dr. Alford stated that he found Appellant "very
much lacking the typical interpersonal symptoms that are seen in an
interview with somebody with a diagnosis of borderline personality
disorder." 
     It is apparent from Dr. Alford's testimony that Appellant was
not diagnosed with the personality disorder because he did not
exhibit sufficient signs or recognized traits of such disorder. 
Not surprisingly, Appellant cites no convincing authority or
argument for his novel proposition that he was not diagnosed with
the disorder because of his youth.  Because it is not apparent
without further research that the argument is well taken, we will
not consider it.  Matthews v. State, 327 Ark. 70, 938 S.W.2d 545
(1997).
              Motion to Transfer to Juvenile Court
     Appellant contends that it was error for the trial court to
deny his motion to transfer the charge to juvenile court without
first having conducted a hearing on the motion as provided in Ark.
Code Ann.  9-27-318(d) (Supp. 1995).  As stated previously,
Appellant was sixteen years old when he allegedly committed the
murder.  We note at the outset Appellee's concession that this
court's holding in Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877
(1995), that an appeal from an order denying transfer of a case to
juvenile court must be considered by way of interlocutory appeal or
is waived, is not applicable to this appeal as the prosecution
against Appellant had been commenced before that decision was
issued.
     Appellee argues that it is impossible for this court to reach
the merits of this issue because Appellant has failed to include in
the record on appeal the transcript of the pretrial hearing in
which his motion was considered.  In his reply brief, Appellant
asserts that no hearing was held on the motion and, thus, no
transcript exists.  In the argument portion of his brief, however,
Appellant states:
          The lower court scheduled hearings on all pending
     motions.  No testimony was presented regarding the motion
     to transfer.  The State argued, and the court agreed,
     that the motion had no merit.  The following day, the
     court made a docket entry which declared:
               motion to transfer to juvenile court
               is denied based upon the seriousness
               of the offense.
     Obviously, by Appellant's own admission, some type of hearing
was conducted in the trial court.  That hearing is not included in
the record.  It is well nigh impossible for us to determine what
actually occurred below without the benefit of reviewing the
transcript of the proceeding.  For all we know, there may have been
a stipulation of facts on the motion, thus eliminating the
necessity for testimony.  Without a record of the pretrial
proceeding, we cannot conduct a meaningful review of Appellant's
argument.  This court has repeatedly stated that it is the
appellant's burden to produce a record sufficient to support his
arguments on appeal.  Stanley v. State, 317 Ark. 32, 875 S.W.2d 493
(1994); Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993), cert.
denied, 114 S. Ct. 2743 (1994); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). 
     A similar situation was presented in Tucker v. State, 313 Ark.
624, 855 S.W.2d 948, rev'd on other grounds, 314 Ark. 500, 863 S.W.2d 813 (1993), where the appellant argued that his transfer
hearing did not meet the due process standards provided in section
9-27-318, but failed to include a transcript of the hearing in the
record.  This court stated:  
     [W]e are at a loss to determine what precisely transpired
     at the hearing.  Without a transcript of the hearing, we
     must assume that the court ruled correctly based on the
     arguments and testimony presented.  See Woosley v.
     Arkansas Real Estate Comm'n, 263 Ark. 348, 565 S.W.2d 22
     (1978); Finch v. State, 262 Ark. 313, 556 S.W.2d 434
     (1977).

Id. at 630, 855 S.W.2d  at 951.  This court went on to hold in
Tucker that the criminal information, which charged the appellant
with aggravated robbery and kidnapping, in and of itself was
sufficient evidence of the serious and violent nature of the crimes
to support an order denying the motion to transfer.  Additionally,
this court observed that it was not necessary for the trial court
to give equal weight to each of the factors in section 9-27-318(e). 
     Here, Appellant was charged with capital murder for the
robbery and resulting death of a clerk, who was shot twice in the
head by Appellant.  In light of our holding in Tucker and our long-
standing rule that it is the appellant's burden to produce a
sufficient record on appeal, we affirm the trial court's decision
not to transfer the charge of capital murder against Appellant to
juvenile court.
                  Motion for Directed Verdict
     Appellant argues that the trial court erred in denying his
directed-verdict motions made at the end of the State's case and at
the conclusion of all the evidence.  We do not reach the merits of
this issue as Appellant's motions below were not sufficiently
specific to apprise the trial judge of the particular alleged
deficiencies in the evidence presented against him.    
     At the conclusion of the State's case, Appellant's counsel
moved for a directed verdict on the ground that the State had
"failed to prove the essential elements of the crime of capital
murder and the issue be dismissed and the applicable charge to go
forward with would be first degree murder."  At the conclusion of
presentation of all the evidence, Appellant's counsel renewed his
motion for directed verdict, again asserting that the State had
"failed to prove the essential elements of the crime of capital
murder and that it should be dismissed and that the only charge to
go forward be first degree murder."
     In order to preserve a sufficiency argument for appeal, proof
of the element of the crime that is alleged to be missing must be
specifically identified in a motion for a directed verdict, or the
issue is deemed not preserved for appeal.  Lovelady v. State, 326
Ark. 196, 931 S.W.2d 430 (1996).  Moreover, while it is true that
Rule 4-3(h) requires us to review the record for error in life and
death cases, this review presupposes that a proper objection was
made at trial.  Webb v. State, 327 Ark. 51, ___ S.W.2d ___ (1997). 
See also Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996). 
Here, because Appellant failed to make a specific motion for
directed verdict indicating the particular deficiencies in the
State's proof, it is as if he failed to object at all, and that
failure below precludes our review of the sufficiency of the
evidence on appeal.  
                      Motion for New Trial
     Appellant filed a motion for new trial on the grounds that it
was error for the trial court to have denied his motion for
continuance and that such ruling deprived him of the opportunity to
have been better prepared to present a defense of not guilty by
reason of mental disease or defect.  The decision of whether to
grant or deny a motion for a new trial lies within the sound
discretion of the trial court, and this court will not reverse that
decision absent an abuse of discretion.  Jones v. State, 321 Ark.
649, 907 S.W.2d 672 (1995); Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995).  For the reasons stated above with regard to the
trial court's denial of the continuance, we find no abuse of
discretion and affirm the trial court's denial of the motion for
new trial.
                           Rule 4-3(h)
     In accordance with Ark. Sup. Ct. R. 4-3(h), the record of the
trial has been examined for rulings adverse to Appellant on
objections, motions, and requests by either party, and we find no
reversible error.
     Affirmed.