Hughes v. State
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Cite as 2011 Ark. 147
SUPREME COURT OF ARKANSAS
No.
CR 10-907
Opinion Delivered
DAVID WAYNE HUGHES,
APPELLANT,
VS.
April 7, 2011
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
NO. CR-2009-712,
HON. JAMES O. COX, JUDGE,
STATE OF ARKANSAS,
APPELLEE,
APPEAL DISMISSED.
KAREN R. BAKER, Associate Justice
Appellant David Wayne Hughes appeals from a judgment of acquittal based on mental
disease or defect entered on June 14, 2010, by the Sebastian County Circuit Court. For
reversal, he argues two points: (1) that the trial court erred by finding that he committed the
offense of terroristic threatening; and (2) that by compelling him to utilize the affirmative
defense of mental disease or defect, he was deprived of his constitutional right to a trial by
jury. This case was certified to us from the court of appeals as involving an issue of first
impression, a question pertaining to the interpretation of the federal constitution, and a
substantial question of law concerning the interpretation of an act of the Arkansas General
Assembly. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1), (3), and (6) (2010). We
dismiss this appeal.
By criminal information filed on June 22, 2009, appellant was charged with one count
of terroristic threatening in the first degree in violation of Ark. Code Ann. § 5-13-301 (Repl.
Cite as 2011 Ark. 147
2006), a Class D felony, for events occurring on May 31, 2009, in that he feloniously and
with the purpose of terrorizing another person, threatened to cause death or serious physical
injury to the congregation of Harvest Time Tabernacle Church (“Harvest Time”). On
December 30, 2009, the State filed a motion for mental evaluation of appellant asserting that
there was reason to believe that mental disease or defect will or has become an issue in the
case, and/or that there was reason to doubt appellant’s fitness to proceed. The motion
contained allegations that while being interviewed by Detective Rodney Reed, appellant
stated that he would more than likely kill himself, that he requested a gun to be able to end
the matter, and that he alternated between crying like a baby and flying into a rage of anger.
On January 4, 2010, an order was entered for the mental-health evaluation of appellant, and
the report of the mental examination was filed on April 9, 2010.
On April 21, 2010, appellant filed a motion in limine, a demand for a jury trial, and
a motion for a determination that Ark. Code Ann. § 5-2-313 was unconstitutional as applied
to him. He sought to preclude evidence of his mental disease or defect, arguing that he
waived this affirmative defense. Appellant also argued that to the extent Ark. Code Ann. § 52-313 does not require a trial by jury on the underlying offense when the defense of mental
disease or defect is waived, the statute violated his rights under article 2, sections 7 and 23 of
the Arkansas Constitution and the Sixth and Fourteenth Amendments to the United States
Constitution. By order entered on May 26, 2010, the trial court denied the motion in limine,
the demand for a jury trial, and the request to find Ark. Code Ann. § 5-2-313
unconstitutional.
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On May 26, 2010, a hearing on the underlying case of terroristic threatening was held.
Mark Turner testified that at a meeting on June 1, 2009, appellant told Turner that the
previous Sunday, he had gone to Harvest Time’s parking lot, sat outside with a gun for fifteen
minutes, and contemplated going inside and shooting people. Several days later, appellant,
appearing angry and upset, told Turner that he had been informed that he could no longer
attend Harvest Time. Because he was afraid, Turner informed the members of Harvest Time
of his conversations with appellant. Turner also testified that appellant had told him in
previous conversations about how he had gone into the woods, put a gun to his head, and
tried to fire it.
Rodney Reed, a detective with the Fort Smith Police Department and a member of
Harvest Time, testified that after appellant was arrested and Mirandized, he questioned him.
During the questioning, Reed stated that appellant asked for his gun so that appellant could
take his own life and that he talked about having previously placed a revolver to his head but
stated that the gun never fired when he pulled the trigger. Reed said that appellant displayed
various moods during the interview: somberness, anger, and crying. Appellant also told Reed
that his son had committed suicide with appellant’s gun several years earlier and that his
daughter and son-in-law were keeping his granddaughter from him because he refused to give
them money, which was the reason he was so outraged on the day he went to Harvest Time.
Appellant’s wife, Lili Hughes, testified that on May 31, 2009, appellant went to
Harvest Time and was going to deliver some gifts to their granddaughter. She stated that
when he left their home he was not depressed and was not making threats toward anyone and
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did not take a gun with him because appellant did not own a gun. She disputed that appellant
told Turner about having thoughts of shooting somebody, but she admitted that appellant had
been treated for mental illness.
Based upon the testimony from the May 26, 2010 hearing, documentary evidence, and
arguments from posthearing briefs, the circuit court entered a judgment of acquittal based on
mental disease or defect on June 14, 2010.1 The court found that appellant had committed the
offense of terroristic threatening in the first degree and that the offense involved a substantial
risk of bodily injury to another person and/or a substantial risk of serious damage to the
property of another. The court stated that appellant suffered at the time of commission of the
offense from both a mental disease and a mental defect and did not have the capacity to
conform his conduct to the requirements of the law. Also, the circuit court stated that
appellant remained affected by both mental disease and mental defect and committed him to
the custody of the Director of the Department of Human Services. Appellant filed a timely
notice of appeal.
Arkansas Rule of Appellate Procedure–Criminal 1(a) (2010) provides that “[a]ny
person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this
state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of
1
The order specifically incorporated the report of Dr. Paul Deyoub who concluded
that appellant, at the time of the examination, had the capacity to understand the proceedings
against him and to assist effectively in his defense. Dr. Deyoub also found that, at the time
of the commission of the offense, appellant had the capacity to appreciate the criminality of
his conduct, but he did not have the capacity to conform his conduct to the requirements
of the law and that he had a mental disease and a mental defect at the time of the offense.
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Arkansas.” Complementing this rule is Ark. Code Ann. § 16-91-101(a) (Repl. 2006), which
states that “[a]ny person convicted of a misdemeanor or a felony by virtue of a trial in any
circuit court of this state has the right of appeal to the Supreme Court.” In his notice of
appeal, appellant asserts “that he appeals . . . from the Order and Judgment entered in this
matter on June 14, 2010, and all prior Orders including the order entered on May 26, 2010,
in favor of the State of Arkansas and against the Defendant, David Hughes.” Appellant was
not convicted of a misdemeanor or a felony by the circuit court. Because the Arkansas Rules
of Criminal Appellate Procedure and Arkansas statutes do not confer a right of direct appeal
from a judgment of acquittal based on mental disease or defect, we dismiss this appeal.
Appeal dismissed.
H ANNAH, C.J., dissents.
JIM H ANNAH, Chief Justice, dissenting. I respectfully dissent. The circuit court
determined that “the Defendant committed the underlying offense of terroristic threatening.”
However, the majority concludes that Hughes may not appeal that decision.
Although the majority relies on Arkansas Rule of Appellate Procedure—Criminal 1(a)
(2010) and Arkansas Code Annotated section 16-91-101(a) (Repl. 2006), neither supports the
majority’s decision. Rule 1(a) and section 16-91-101(a) provide that a “person convicted of
a misdemeanor or a felony” has a right of appeal. Because Hughes was found to have
committed terroristic threatening, which is a felony, see Arkansas Code Annotated section 513-301 (Repl. 2006), he was “convicted of a misdemeanor or felony.” “[T]he word
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conviction can mean either the finding of guilt or the entry of a final judgment on that
finding.” United States v. Deal, 508 U.S. 129, 131 (1993). The United States Supreme Court
stated that “[i]n the context of § 924(c)(1), we think it unambiguous that ‘conviction’ refers
to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment
of conviction.” Deal, 508 U.S. at 132. This same principle applies in the present case. The
only way to read section 16-91-101(a) and Rule 1(a), and not reach an absurd result, “is to
read ‘conviction’ to include” the finding of guilt based on proof beyond a reasonable doubt
of the underlying crime. Because Hughes was found guilty, under Rule 1(a) and section 1691-101(a), he has a right of appeal. That a subsequent acquittal was entered based on a
mental-health report under Arkansas Code Annotated section 5-2-313 (Repl. 2006), is of no
moment. Hughes was found guilty of terroristic threatening before he was acquitted based on
a mental defect.2 Before a criminal defendant can be acquitted as a consequence of a mental
2
I note another concern. The facts of this case are unusual. It is not typical for the
State, rather than the criminal defendant, to assert mental incompetency. Where a defendant
asserts incompetency, concerns about due process and the right to appeal are lessened because
the criminal defendant is attempting to prove his own incompetency. The United States
Supreme Court, in Jones v. United States, 463 U.S. 354, 367 (1983), noted that under the
statute at issue before the Court, automatic commitment occurred “only if the acquittee
himself advances insanity as a defense and proves that his criminal act was a product of his
mental illness.” Where a criminal defendant advances the defense of insanity, he or she
necessarily admits commission of the offense, and, on that basis, “there is good cause for
diminished concern as to the risk of error.” Id. Here, however, Hughes never admitted that
he had committed the offense and required the State to prove that he did. The circuit court
determined that Hughes committed terroristic threatening, but acquitted Hughes because of
a mental defect, and Hughes was committed to the Arkansas State Hospital. “Commitment
for any purpose constitutes a significant deprivation of liberty that requires due process
protection.” Jones, 463 U.S. at 361 (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)).
In the case before this court, the State has deprived Hughes of his liberty by committing him
to the state hospital and denied him the right to appeal the underlying decision on the
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defect, there must be a judicial determination that, based on proof beyond a reasonable doubt,
the criminal defendant committed the underlying crime.
It is only after the State meets its burden of proving the charged crime beyond a
reasonable doubt that acquittal based on insanity is considered. This is because insanity is not
an element of the charged crime, but instead is a defense, making the standard of proof for
insanity distinct from that required for the charged crime. “If the state meets its traditional
burden of proof beyond a reasonable doubt, the defendant then bears the burden of
establishing that he was insane at the time of the offense and, therefore, exempt from criminal
responsibility.” State v. Williams, 804 So. 2d 932, 938 (La. Ct. App. 2001); see also State v.
Platt, 19 P.3d 412, 417 (Wash. 2001) (quoting State v. Platt, 984 P.2d 494, 505 (Wash. 2001))
(standard to prove the criminal act in the context of mental disease or defect case requires
proof beyond a reasonable doubt); Bethea v. United States, 365 A.2d 64, 94 (D.C. Cir. 1976)
(only after the charged crime has been proved beyond a reasonable doubt is the issue of
insanity considered).
Hughes was charged with, and convicted of, terroristic threatening in the first degree,
a Class D felony. The requirements of Rule 1(a) and section 16-91-101(a) are both met. The
majority errantly deprives Hughes of his right to appeal. Therefore, I dissent.
charged crime that permitted the commitment. He has been denied due process. It should
also be noted that the State continues to errantly argue that it was not required to prove
beyond a reasonable doubt that Hughes committed the crime. Rather than a diminished
concern, the facts of this case give cause for a heightened concern.
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